PEOPLE v. RONALD ENRIQUE YBARRA

Filed 4/18/07 Opinion Following Rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Story continued from Part I .

6. Juror Conduct

Cernas and Ybarra argue that one jurors dissuasion of another from asking the trial court for discharge as a holdout juror constituted prejudicial juror misconduct. The Attorney General argues the contrary.

During the hiatus between the verdicts and the sentencing hearing, the trial court received an anonymous letter from a concerned citizen purporting to narrate charges of jury bias by someone whom the writer identified as a friend who was a juror at Cernass and Ybarras trial. At the trial courts invitation, the juror appeared for in camera questioning by the trial court with counsel present. She said that after initial balloting showed nine votes for conviction and three votes (including hers) for acquittal a majority juror said the minority jurors were playing the devils advocate, which to her was like the devils helper, and that no one changed anyones mind. She characterized the deliberations as intense and the majority jurors and herself alike as mad. She described the tone of the majority jurors as Hurry up and just say yes and the response of the minority jurors as acquiescence little by little in the will of the majority jurors. She said she wanted to get out of it but said nothing after a juror who had been a juror before told her it would not be easy to get out of it and the judge would send [her] back and start deliberating more. At the end of the in camera questioning, Cernas and Ybarra made a motion for a new trial on the ground of juror misconduct. Finding no prejudice, the trial court denied the motion.

Jurors may be expected to disagree during deliberations, even at times in heated fashion. (People v. Orchard (1971) 17 Cal.App.3d 568, 574 (Orchard).) Quoting Orchard with approval, the Supreme Court called particularly harsh and inappropriate a majority jurors alleged death threat to a lone holdout juror but emphasized no reasonable juror could have taken it literally. Manifestly, the alleged death threat was but an expression of frustration, temper, and strong conviction against the contrary views of another panelist. (People v. Keenan (1988) 46 Cal.3d 478, 541 (Keenan).) Here, the record shows that at the polling of the jury the juror at issue answered, Yes, to the question whether those were her verdicts as read. Likewise, at the polling of the jury in Keenan the lone holdout juror signified that the verdict was her individual verdict. (Id. at p. 542.)

Ybarra argues, primarily in reliance on In re Stankewitz (1985) 40 Cal.3d 391 (Stankewitz), that the juror who had been a juror before was not an expert of judicial practices and that he committed misconduct by asserting such expertise. The juror in Stankewitz advised the other jurors that he had been a police officer for over 20 years; that as a police officer he knew the law; that the law provides a robbery takes place as soon as a person forcibly takes personal property from another person, whether or not he intends to keep it; and that as soon as petitioner took the wallets at gunpoint in this case he committed robbery, whether or not he intended to keep them. (Id. at p. 396.) That juror consulted his own outside experience as a police officer on a question of law, gave legal advice that was totally wrong, and, vouching for its correctness on the strength of his long service as a police officer, did not keep his erroneous advice to himself but stated it again and again to his fellow jurors. (Id. at pp. 399-400.) The Supreme Court found prejudice. (Ibid.)

Stankewitz is inapposite. The record here shows that the juror who had been a juror before professed no expertise in judicial practices but simply expressed an opinion on the basis of a life experience he had had. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the trial court. Such a weakness, however, must be tolerated. (People v. Marshall (1990) 50 Cal.3d 907, 950.)

The governing standard on appeal is independent review, as a mixed question of law and fact, of the trial courts finding. (People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5 (plur. opn. of George, C.J.).) On the basis of admissible evidence in the jurors responses to the trial courts questioning (see Evid. Code, 1150, subd. (a)), and applying the governing standard of review, we conclude that the trial courts finding of no prejudice is correct on the law and the facts alike.

7. Youthful Offender Discretion

Cernas argues that the trial courts lack of awareness of sentencing discretion to impose on the special circumstance first degree murder a youthful offender 25-to-life term instead of an LWOP term requires a remand for resentencing. The Attorney General argues that Cernas fails to discharge his burden of showing the trial courts lack of awareness of that discretion.

Like the probation officers report, Cernass testimony at trial shows he was 17 years old on October 5. The record of the sentencing hearing is silent about that. The statutory penalty for a person who commits special circumstance first degree murder and who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime is confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life. ( 190.5, subd. (b); italics added.) Case law characterizes section 190.5, subdivision (b) as authorizing a presumptive penalty of LWOP for a 16- or 17-year-old special circumstances murderer, or, at the discretion of the court, 25 years to life. [(Italics in original).] (People v. Guinn (1994) 28 Cal.App.4th 1130, 1145.) The statute does not involve two equal penalty choices, neither of which is preferred. The enactment by the People evidences a preference for the LWOP penalty. (Ibid.)

Despite that statutory preference, section 190.5, subdivision (b) requires a proper exercise of discretion in choosing whether to grant leniency and impose the lesser penalty of 25 years to life for 16-year-old or 17-year-old special circumstance murderers. The choice whether to grant leniency of necessity involves an assessment of what, in logic, would mitigate or not mitigate the crime. The factors listed in [former] rules 421[^[1]] and 423[^[2]], implementing the determinate sentencing law, do not lose their logical relevance to the issue of mitigation merely because [this is not] a determinate sentencing matter. (People v. Guinn, supra, 28 Cal.App.4th at p. 1149.)

California Rules of Court, rule 4.421 sets out 17 circumstances in aggravation:

(a) Facts relating to the crime, whether or not charged or chargeable as enhancements, including the fact that:

(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.

(2) The defendant was armed with or used a weapon at the time of the commission of the crime.

(3) The victim was particularly vulnerable.

(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission.

(5) The defendant induced a minor to commit or assist in the commission of the crime.

(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process.

(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed.

(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism.

(9) The crime involved an attempted or actual taking or damage of great monetary value.

(10) The crime involved a large quantity of contraband.

(11) The defendant took advantage of a position of trust or confidence to commit the offense.

(b) Facts relating to the defendant, including the fact that:

(1) The defendant has engaged in violent conduct which indicates a serious danger to society.

(2) The defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.

(3) The defendant has served a prior prison term.

(4) The defendant was on probation or parole when the crime was committed.

(5) The defendants prior performance on probation or parole was unsatisfactory.

(c) Any other facts statutorily declared to be circumstances in aggravation.

Rule 4.423 sets out 15 circumstances in mitigation:

(a) Facts relating to the crime, including the fact that:

(1) The defendant was a passive participant or played a minor role in the crime.

(2) The victim was an initiator of, willing participant in, or aggressor or provoker of the incident.

(3) The crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur.

(4) The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense.

(5) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

(6) The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim.

(7) The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal.

(8) The defendant was motivated by a desire to provide necessities for his or her family or self.

(9) The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime; and the victim of the crime, who inflicted the abuse, was the defendants spouse, intimate cohabitant, or parent of the defendants child; and the facts concerning the abuse do not amount to a defense.

(b) Facts relating to the defendant, including the fact that:

(1) The defendant has no prior record, or an insignificant record of criminal conduct, considering the recency and frequency of prior crimes.

(2) The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime.

(3) The defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.

(4) The defendant is ineligible for probation and but for that ineligibility would have been granted probation.

(5) The defendant made restitution to the victim.

(6) The defendants prior performance on probation or parole was satisfactory.

In addition to the circumstances in aggravation and mitigation in rules 4.421 and 4.423, respectively, the factors stated in section 190.3 are available, to the extent relevant to an exercise of discretion to grant leniency, as guidelines under section 190.5. (People v. Guinn, supra, 28 Cal.App.4th at pp. 1142-1143.) Section 190.3 sets out 11 factors:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.

(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e) Whether or not the victim was a participant in the defendants homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

The probation officers report noted that the jury found Cernas committed the murder pursuant to Penal Code Section 190.2(a)(22), that the murder was intentional, and [he was an] active participant[] in a criminal street gang as defined in Penal Code Section 186.22(f), which would establish the sentence to be life without the possibility of parole. At the sentencing hearing, the trial court acknowledged having read and considered the probation officers report.

Invited by the trial court to make additions or corrections to the content of the report, both counsel answered in the negative. The trial court announced that, apart from a custody credits error, its intended decision was to follow the recommendation in the probation officers report and asked counsel, Does either side wish to be heard? Cernass attorney requested that, if the Court has the inherent power to strike the special circumstances, to do so. The prosecutor responded that Cernass multiple crimes and his violence, callousness, and apparent lack of remorse earned him what hes going to be getting today. With regard to the request for [sic] motion to strike, that is denied, the trial court ruled, essentially for the reasons set forth (inferentially in the probation officers report) that the gravity of the current offense certainly doesnt merit it. The trial court then imposed an LWOP term for the special circumstance first degree murder.

Contrary to the premise of Cernass motion to strike, the trial court has no inherent power to strike the special circumstance. Over a decade and a half ago, the electorate passed Proposition 115, an initiative measure that, inter alia, expressly denied the trial court that power:

Notwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive. ( 1385.1.)

The language of the statute clearly and unmistakably prohibited the trial court from striking the special circumstance. (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1283.) Implicit in the trial courts ruling on Cernass motion to strike and stating reasons for so ruling is a lack of awareness by the court and counsel alike of the electorates express elimination of the power the trial court purported to exercise. Consequently, the silence of the sentencing hearing record about Cernass age is suggestive of a lack of awareness by the court and counsel alike of the discretion that section 190.5, subdivision (b) confers to impose on a youthful offender a 25-to-life term instead of an LWOP term.

Even discretionary decisionmaking is subject to some level of review, however deferential. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Since the record explicitly shows a lack of meaningful argument by counsel about the facts and the law and implicitly shows a belief by the court and counsel alike that an LWOP term was mandatory if the special circumstance were not stricken, our deferential review shows that a remand for resentencing in light of the factors in section 190.3 and the circumstances in aggravation and mitigation in rules 4.421 and 4.23, respectively, is imperative. So we will vacate the sentence and remand to the trial court with directions.^[3] ( 190.5, subd. (b).)

8. Firearm Enhancements on First Degree Murder

With reference to the first degree murder, Cernas argues, the Attorney General agrees, and we concur that since the trial court imposed one firearm enhancement personal and intentional discharge of a firearm proximately causing great bodily injury or death ( 12022.53, subd. (d)) and imposed and stayed another firearm enhancement personal use of a firearm ( 12022.5, subd. (a)(1)) the latter must be stricken from the judgment. ( 12022.53, subd. (f).) So we will vacate the sentence and remand to the trial court with directions.

9. Lesser Included Offense

On the premise that the criminal street gang crime is a lesser included offense of the functional equivalent of a single greater crime of first degree murder with a criminal street gang enhancement, Cernas and Ybarra argue that the sentence on the criminal street gang crime must be stayed. The Attorney General argues the contrary.

The United States Supreme Court characterizes a sentence enhancement as the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. (Apprendi v. New Jersey(2000) 530 U.S. 466, 494, fn. 19 (Apprendi); cf. People v. Seel (2004) 34 Cal.4th 535, 539, fn. 2, citing People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) On that foundation, Cernas and Ybarra argue that murder with a gang-killing special circumstance is the functional equivalent of a single greater crime and that the criminal street gang crime is a lesser included offense of that crime.

The law is settled in California that enhancement allegations are not to be considered in determining lesser included offenses (People v. Toro (1989) 47 Cal.3d 966, 972,^[4]citing People v. Wolcott (1983) 34 Cal.3d 92, 101), that the sole test of a lesser included offense is whether the statutory elements of the greater offense include all of the statutory elements of the lesser offense (People v. Reed (2006) 38 Cal.4th 1224, 1227), that if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former (People v. Lopez (1998) 19 Cal.4th 282, 288), and that convictions of both a greater crime and a lesser included offense require reversal of the conviction of the latter if substantial evidence of both is in the record (People v. Moran (1970) 1 Cal.3d 755, 763; People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on another ground by People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6).

The statutory elements of the criminal street gang crime and the criminal street gang element are disparate. Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang commits the criminal street gang crime. ( 186.22, subd. (a); italics added.) In contrast, any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members is punishable by the criminal street gang enhancement. ( 186.22, subd. (b); italics added.) So a person can commit the crime of first degree murder with a criminal street gang enhancement without necessarily committing the criminal street gang crime.

Issues similar to the one before us are pending before the California Supreme Court. (People v. Sloan, review granted June 8, 2005,S132605; People v. Izaguirre, review granted June 8, 2005, S132980, People v. Jenkins, review granted Jan. 24, 2007, S147926.) In the absence of a ruling contrary to settled law in California, the doctrine of stare decisis obliges us to reject Cernass and Ybarras argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

10. Imposition of Aggravated and Consecutive Terms

Cernas and Ybarra argue that the imposition of aggravated terms without jury findings on circumstances in aggravation and of consecutive terms without jury findings on criteria affecting concurrent or concurrent sentences violated the federal constitutional guarantees of jury trial and proof beyond a reasonable doubt.

With reference to the imposition of aggravated terms, the trial court articulated four circumstances in aggravation discharge of a firearm, particularly vulnerable victims, planning and sophistication, and high degree of cruelty and callousness to justify the imposition of aggravated terms on the personal use of a firearm enhancements ( 12022.5, subd. (a)(1)) and the latter three circumstances in aggravation to justify the imposition of aggravated terms on the active participation in a criminal street gang crimes ( 186.22, subd. (a)). (See rule 4.421(a)(1), (2), (3), (8), Cal. Rules of Court; cf. 1170, subd. (b).) Later, the United States Supreme Court held that the determinate sentencing law, by permitting the imposition of an aggravated term on the basis of facts that a trial court finds true by a preponderance of the evidence instead of on the basis of facts that a jury finds true beyond a reasonable doubt, breaches the defendants Sixth and Fourteenth Amendment right to a jury trial. (Cunningham v. California(2007) 549 U.S. ___, ___ [166 L.Ed.2d 856, 864; 127 S.Ct. 856, 860] (Cunningham).)

Here, the jury found true beyond a reasonable doubt as to Cernas and Ybarra alike the allegation of personal use of a firearm ( 12022.5, subd. (a)(1)) and as to Cernas alone the allegation of personal and intentional discharge of a firearm proximately causing great bodily injury or death ( 12022.53, subd. (d)). Those verdicts show the jury necessarily found that each was armed with or used a weapon at the time of the commission of the crime (Rule 4.421(a)(2), Cal. Rules of Court), so one circumstance in aggravation discharge of a firearm does not implicate Cunningham. (See People v. Calhoun (2007) 40 Cal.4th 398, 406.) However, each of the other three circumstances in aggravation particularly vulnerable victims, planning and sophistication, and high degree of cruelty and callousness is a fact that the trial court found true by a preponderance of the evidence, not a fact that the jury found true beyond a reasonable doubt. Each of those three implicates Cunningham.

An appellate court is not restricted to the remedies of affirming or reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.] [Citation.] (People v. Edwards (1985) 39 Cal.3d 107, 118 (Edwards); see  1260.) By analogy to the rule in Edwards, we acknowledge a temptation to reduce the aggravated terms to the middle terms. Doing so, however, would deny the trial court the opportunity to structure overall sentences in compliance with Cunningham at contested resentencing hearings. Since we are loath as a reviewing court to preclude the exercise of the sentencing discretion that is intrinsically within the province of the trial court, we will vacate both sentences in toto and remand with directions.

With reference to the imposition of consecutive terms, Cunningham is silent. (See rule 4.425, Cal. Rules of Court.) Since the California Supreme Court rejected a like consecutive sentence argument (People v. Black (2005) 35 Cal.4th 1238, 1244,^[5]distinguishing Apprendi, supra, 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220), the doctrine of stare decisis obliges us to reject Cernass and Ybarras consecutive sentence argument as well (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455).^[6]

11. Parole Revocation Fines

Cernas and Ybarra argue, the Attorney General agrees, and we concur that since neither has a sentence that includes a period of parole the $10,000 parole revocation fines must be stricken from the judgments. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186;  1202.45.) So we will vacate the fines and remand to the trial court with directions.^[7]

DISPOSITION

Both sentences are vacated in toto and the matters are remanded to the trial court with directions. Otherwise the judgments are affirmed.

With reference to all sentencing issues other than Cunningham, the trial court is directed to hold a contested resentencing hearing on Cernass special circumstance first degree murder ( 187, subd. (a), 190.2, subd. (a)(22), 190.5, subd. (b)); to strike his personal use of a firearm enhancement ( 12022.5, subd. (a)) from that count; to strike his $10,000 parole revocation fine ( 1202.45) if and only if the trial court on remand imposes an LWOP term on that count; and to strike Ybarras $10,000 parole revocation fine ( 1202.45).

With reference to the Cunningham issue, which impacts sentencing on the personal use of a firearm enhancements ( 12022.5, subd. (a)(1)) and on the active participation in a criminal street gang crimes ( 186.22, subd. (a)), the trial court, by written notice to counsel, and the prosecutor, by written notice to the trial court and counsel, each has the right to initiate, within 30 days after the filing of the remittitur in the trial court, contested resentencing hearings within 60 days after the filing of the remittitur in the trial court at which the trial court shall structure overall sentences in compliance with Cunningham. If neither the trial court nor the prosecutor initiates those proceedings, the trial court shall proceed as if the remittitur constituted a modification of the judgment to show the imposition of middle terms instead of aggravated terms.

Cernas and Ybarra each has the right to be present at the contested resentencing hearing but not at hearings, if any, calendared solely for amendments of the respective abstracts of judgment. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) The trial court shall issue, and send to all interested persons, certified copies of appropriately amended abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 187-188.)

_____________________

Gomes, J.

I CONCUR:

_____________________

Vartabedian, Acting P.J.

WISEMAN, J.

I concur with the majority that these defendants sentences be vacated and remanded for resentencing.

I respectfully dissent, however, with the majoritys analysis of the Cunningham issue and with the dispositions directions to the trial court relating to it. In my view, once the majority decided to vacate the sentence and remand for resentencing on non-Cunningham issues, it is only necessary to acknowledge that, 1) the United States Supreme Court decided Cunninghamv. California (2007) 549 U.S. ___ [127 S.Ct. 856] after Cernas and Ybarra were sentenced; and 2) in selecting the upper term, the sentencing court relied upon both constitutionally proper and improper factors post-Cunningham. We need not reach issues based upon moot questions or declare rules of law that need not be decided. (Westly v. California Public Employees Retirement System Board of Administration (2003) 105 Cal.App.4th 1095, 1119-1120; Giles v. Horn (2002) 100 Cal.App.4th 206, 227.) For these reasons, in my opinion, it is unnecessary to decide whether remand is required when a sentencing court uses both proper and improper factors under Cunningham or whether Cunningham error was prejudicial in this case. (See In re Thomas C. (1986) 183 Cal.App.3d 786, 802 [appellate court properly refused to consider issue not necessary to decide appeal].)

_________________________________
Wiseman, J.

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^[1]Former California Rule of Court, rule 421, is now rule 4-421 (rule 4.421).

^[2]Former California Rule of Court, rule 423, is now rule 4-423 (rule 4.423).

^[3]Our holding moots Cernass concomitant ineffective assistance of counsel argument.

^[4]In People v. Guian, supra, 18 Cal.4th at p. 568, fn. 3, the Supreme Court disapproved dictum on another point in Toro.

^[5]Overruled on another ground by Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876; 127 S.Ct. at p. 871].

^[6]So we reject out of hand Cernass and Ybarras concomitant ineffective assistance of counsel argument for failure to object. (See People v. Anderson, supra, 25 Cal.4th at p. 587; Civ. Code,  3532.)

^[7]Since the only relief we have granted is with reference to sentencing, we reject out of hand Cernass and Ybarras cumulative prejudice argument.