P. v. Neel

Filed 9/6/07 P. v. Neel CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury found Jason Robert Neel^[1](appellant) not guilty of first degree murder, but guilty of the lesser offense of second degree murder (Pen. Code,  187, subd. (a))^[2]in count 1. It found true two special allegations appended to that count: that appellant used a firearm ( 12022.5, subd. (a)) and that he discharged a firearm that caused bodily injury or death in the commission of the offense ( 12022.53, subd. (d)). The jury also found appellant guilty of possession for sale of methamphetamine (Health & Saf. Code,  11378) in count 2. Appellant pleaded no contest to being a felon in possession of a firearm ( 12021, subd. (a)) in count 3. He admitted that he had suffered a prior prison term within the meaning of section 667.5, subdivision (b) charged as an enhancement attached to each count.

On count 1, the trial court sentenced appellant to state prison for 15 years to life, plus 25 years to life for the section 12022.53 subdivision (d) enhancement, plus one year for the prior prison term. The court ordered but stayed, pursuant to section 12022.53, subdivision (f), 10 additional years for the section 12022.5, subdivision (a) enhancement. On count 2, the court imposed a consecutive upper term of three years and stayed a one-year term for the prior prison term enhancement. On count 3, the court imposed a concurrent upper term of three years. It made no order regarding the prior prison term enhancement attached to count 3.

Appellant claims various sentencing errors. We agree with appellant that the section 12022.5, subdivision (a) gun-use enhancement must be stricken. We conclude that the section 667.5, subdivision (b) enhancement attached to count 2 must be stricken. We agree with both parties that the abstracts of judgment must be corrected in various ways. In all other respects, the judgment is affirmed.

FACTS

Kimberly Vellone lived with her two sons and her mother. Appellant and Vellone were outside Vellones house on the evening of January 20, 2006. At some point, Vellone went into the house and into her room. Half an hour later, appellant entered the backdoor of the house and went to Vellones room. Vellone and appellant exited the house together and Vellones mother heard a pop. She saw Vellone lying face down on the ground, and she heard someone running along the side of the house. A neighbor called 911.

Vellone suffered a fatal gunshot wound to the head. A Charter Arms, black plastic, .38-special gun case with live ammunition was found in a trash can in an alley behind and down the street from Vellones house. The bullet removed from Vellones head was a .38-special that could have been fired from a Charter Arms revolver.

The following morning, appellant was located, asleep on a mattress, in a house 10 to 15 miles from Vellones house. A baggie containing 13.3 grams of methamphetamine was found on the mattress. Appellant had $430 in cash on him. No gun was found.

Sergeants Laura Lopez and Martin Downs interviewed appellant later that same day, and the tape of the interview was played for the jury. According to appellant, he had gone to see Vellone to get drugs, but Vellone and a friend of hers, Bulldog, tried to set him up to rob him. As the three wrestled, appellant pulled out a gun, fired, and ran. Appellant claimed not to have aimed the gun; he just pointed it over his shoulder and fired. He threw the gun into an aqueduct.

DISCUSSION

1. Did the upper term sentences imposed violate Cunningham?

The trial court imposed upper term sentences in counts 2 and 3 and on the section 12022.5 subdivision (a) gun enhancement. Relying on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by appellant or found by the jury to be true beyond a reasonable doubt. We disagree.

In Cunningham, the Supreme Court reaffirmed Apprendi, Blakely, and United States v. Booker (2005) 543 U.S. 220, but overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held Californias determinate sentencing law violates a defendants constitutional right to a jury trial to the extent it authorizes the trial judge to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence. This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 863].)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224.)

At the sentencing hearing, the trial court reviewed the probation report and identified the following aggravating circumstances: the crime did involve a large amount of contraband, 19 grams; [appellants] prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous; [appellant] was on misdemeanor probation and state parole when he committed this crime; [appellants] prior performance on juvenile probation, misdemeanor probation, misdemeanor PC 36 or Prop. 36, felony probation, deferred entry of judgment and felony Prop. 36 probation was unsatisfactory in that he failed to appear for court hearings, failed to pay fines, violated terms and continued to re-offend. (See Cal. Rules of Court, rule 4.421.)^[3] The court found no mitigating circumstances. (Rule 4.423.)

Respondent urges that the trial court correctly relied on both appellants admission that his crime involved a large quantity of methamphetamine (rule 4.421(a)(10)) and appellants prior criminal history (rule 4.421(b)(2), (3), (4)).

The trial court cited the large amount of contraband, 19 grams, found at the time of appellants arrest, as one of the reasons for imposing the upper terms in appellants sentence. The record reveals that the parties stipulated

that the suspected methamphetamine located by Deputy Paul Leonard and booked into evidence under Kern County Sheriffs Department Case Number SR 06-02435, Item Number 3 was analyzed and found to be 13.3 grams of methamphetamine. This is a Schedule 2 controlled substance and it is a usable amount.

The 19 grams to which the trial court referred, a number that is repeated in the probation report, appears to be the sum of the 13.3 grams stipulated to by appellant and the 5.8 grams found on the victim at the hospital.

Rule 4.421(a)(10) lists, as an aggravating circumstance, that the quantity of contraband involved was large. This determination appears to call for an imprecise quantitative or comparative evaluation of the facts. Thus, although appellant admitted that he possessed 13.3 grams of methamphetamine, it is debatable whether the determination that this was a large quantity of contraband should have been submitted to the jury and proved beyond a reasonable doubt. We need not decide the issue here, however, because the court also relied, and properly so, on appellants prior criminal history in imposing the upper term.^[4]

Appellants criminal history dates back to 1995. The probation report lists juvenile adjudications for two counts of petty theft, receiving stolen property, vandalism, and possession of a dangerous weapon. As an adult, appellant had convictions for being under the influence of a controlled substance, possession of marijuana, giving false identification to a police officer, failure to appear, driving without a license, possession of a dangerous weapon, and resisting arrest.^[5]

Prior to the decision in Cunningham, the prior conviction exception to Apprendi and Blakely was construed broadly by California appellate courts to apply not only to the fact of the prior convictions but also to other issues relating to the defendants recidivism, including the defendants status as a probationer or parolee at the time the current offense was committed and the existence of numerous or increasingly serious prior convictions. (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [courts have held that no jury trial exists on matters involving the more broadly framed issue of recidivism]; People v. McGee (2006) 38 Cal.4th 682, 706-707 [numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendants recidivism].) The reasoning of Thomas and McGee was recently reaffirmed in People v. Black (2007) 41 Cal.4th 799, 819 (Black II), by which we, of course, are bound. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellants prior criminal history was therefore an aggravating circumstance correctly relied upon by the trial court in sentencing appellant to the upper term. And as stated most recently in Black II:

[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial.   [] Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, 41 Cal.4th at pp. 812-813, italics in original.)

In summary, since appellants criminal history established an aggravating circumstance that independently satis[fied] Sixth Amendment requirements and render[ed] him eligible for the upper term, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence . (Black II, supra, 41Cal.4th at p. 820.) In short, there was no federal constitutional error. (Cf. People v. Sandoval (2007) 41 Cal.4th 825, 837-838 [6th Amend. rights violated by imposition of upper term sentence where no aggravating circumstances cited by trial court fell within Blakely exceptions of fact of prior convictions or facts established by jurys verdict or admitted by defendant].)

2. Must the sentence on count 3 be stayed?

Appellant pleaded no contest to being a felon in possession of a firearm ( 12021, subd. (a)) in count 3. The court sentenced him on that count to a concurrent upper term of three years. Appellant contends the concurrent sentence for felon in possession of a firearm must be stayed under section 654. We disagree.

Section 654, subdivision (a) provides in pertinent 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.

Section 654 prohibits the court from imposing double punishment not only where there has been but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. (People v. Perez (1979) 23 Cal.3d 545, 551.) To determine if section 654 applies, the sentencing court must determine the defendants intent and objective in committing the multiple offenses. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Whether the defendant formed a separate intent and objective for each offense is a question for the trial court, and its finding will be upheld on appeal if there is substantial evidence to support it. (Ibid.; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We view the evidence in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins, supra, at pp. 1312-1313.)

At sentencing, defense counsel asked that the court do whats legally right in the sense that [appellant] be given concurrent sentences for his additional charged counts, specifically Count 3, violation of PC 12021, arguing that the gun was solely and only used during the commission of this offense, and its incorrect to say that [appellant] possessed the gun for any other purpose than the commission of this crime. The trial court stated that it would impose a concurrent sentence because the gun was used in the commission of Count 1.

Appellant now contends that, since the trial court found the firearm possession was based on the use of the gun in count 1, the trial court made the common error of making the term concurrent based upon that finding rather than staying the term pursuant to section 654. Appellant likens his case to that of People v. Guzman (1996) 45 Cal.App.4th 1023, in which the court found that this appears to be another case in which a trial court made that common error of imposing concurrent terms, in lieu of staying the terms subject to section 654 as is required . (Id. at p. 1028.) But in Guzman, in which the defendant was convicted of robbery and grand theft, defense counsel argued that the two crimes would be subject to section 654 as they were part of one transaction. The trial court agreed with defense counsel, but subsequently imposed concurrent terms for both the robbery and the grand theft. (Guzman, at pp. 1027-1028.)

We disagree with appellant that there was a mistake by the trial court here, as there was in Guzman. Whether a violation of section 12021, subdivision (a), forbidding persons convicted of felonies from possessing firearms, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the evidence of each individual case. Thus, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford); People v. Venegas (1970) 10 Cal.App.3d 814, 821 (Venegas).) On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper when it is the lesser offense. (Bradford, at p. 22, quoting Venegas, at p. 821.)

Here, there is substantial evidence that the objectives of appellants possession of the gun was antecedent and separate from his use of the gun during his altercation with Vellone. Appellant had the loaded gun with him when he went to pick up drugs from Vellone. He unlawfully possessed the firearm before his arrival at Vellones and implicitly was guilty of the offense of a felon having a firearm in his possession even before the shootings. ( 12021, subd. (a)(1); People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, 1414 (Ratcliff) [crime is committed the instant felon in any way has firearm within possession].) Possession of the firearm was an offense separate and apart from appellants later use of that firearm in shooting Vellone. (Ratcliff, at p. 1414 [use of firearm is separate and distinct transaction undertaken with an additional intent than mere possession].)

The situation here is unlike Bradford, where the defendant wrested a peace officers gun away and immediately shot him with it (Bradford, supra, 17 Cal.3d at p. 13), or Venegas, where the evidence showed the defendant in possession only at the time he shot the victim with the sole objective of shooting the victim (Venegas, supra, 10 Cal.App.3d at p. 821). In such cases, unlike the case here, fortuitous circumstances put the firearm in the defendants hand only at the instant of committing another offense. (Ratcliff, supra, 223 Cal.App.3d at p. 1412.)

Appellant also had different objectives in possessing and using the firearm. Had he intended to go to Vellones house to kill her, it would have been unreasonable for the jury to find that he did not act with premeditation and deliberation as it did. It is reasonable that appellant possessed the gun to protect himself while he completed the drug deal. When a scuffle ensued, appellant killed Vellone when he shot her in the head. Appellants possession of the firearm was not merely incidental to his using a gun in committing second degree murder. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1147 [ 654 did not bar concurrent sentences for firearm possession by felon and shooting at inhabited dwelling where evidence supported inference he harbored separate intents in the two crimes].) The act appellant committed with the firearm was separate and distinct from its mere possession. It was not error to impose a concurrent sentence for the firearm possession conviction. Because we reach this conclusion, we need not address respondents contention that appellant invited any alleged error by requesting that the trial court impose the concurrent sentence.

3. Must the lesser firearm enhancement be stricken?

The information alleged two firearm enhancements against appellant. The jury found that appellant personally used a firearm within the meaning of section 12022.5, subdivision (a), and that he discharged a firearm which caused bodily injury or death within the meaning of section 12022.53, subdivision (d).

The trial court imposed a term of 25 years to life for the section 12022.53, subdivision (d) enhancement. It imposed the upper term of 10 years on the section 12022.5 enhancement and then stayed the term pursuant to section 12022.53, subdivision (f).

Appellant asserts the trial court should have stricken rather than stayed the lesser firearm enhancement. We agree.^[6]

Section 12022.53, subdivision (f) states in pertinent part that [a]n enhancement involving a firearm specified in Section 12022.5 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. When the section 12022.53 enhancement applies, the trial court must strike the section 12022.5 enhancement. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-714.) When an enhancement cannot be imposed, it is error to stay the enhancement; it must be stricken. (People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256.)

Therefore, the trial court erred in imposing and then staying the section 12022.5 enhancement attached to count 1. The enhancement must be stricken.

4. Must the prior prison term enhancement be stricken?

The information alleged a section 667.5, subdivision (b) prior prison term enhancement as to each count, though each of the allegations alleged the same prior conviction and term. The court imposed a one-year term for the prior prison term enhancement on both count 1 and count 2, but stayed that term on count 2 pursuant to section 654. It made no order regarding the enhancement and count 3.

Enhancements which are based on prior convictions, such as a prior prison term enhancement ( 667.5, subd. (b)) are attached to the total sentence, not to individual counts. (See, e.g., People v. Smith (1992) 10 Cal.App.4th 178, 182-183.) Therefore, a court that finds true an allegation that a defendant served a prison term for a prior felony conviction may impose the section 667.5 enhancement based thereon only once; it may not impose and stay other such enhancements based on the same prison term. (People v. Smith, supra, at p. 182.) Appellant does not argue, but we find that since only one section 667.5, subdivision (b) sentence enhancement should have been made a part of appellants aggregate sentence, the section 667.5, subdivision (b) enhancement attached to count 2 should have been stricken by the trial court instead of having been imposed and then stayed. A trial court acts in excess of its jurisdiction and imposes an unauthorized sentence when it stays rather than strikes an enhancement. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Jones, supra, 8 Cal.App.4th 756.) We order that the enhancement attached to count 2 be stricken.

One additional note. We believe that error also occurred when the trial court failed to make any order regarding the prior prison term enhancement attached to count 3. The failure to pronounce sentence on all counts and enhancements results in an unauthorized sentence. (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) But since the court had already ordered the enhancement imposed in count 1, the court had no discretion but to strike the enhancement in count 3.

5. Must the abstracts of judgment be corrected?

The trial court sentenced appellant to state prison for 15 years to life on count 1, plus 25 years to life for the firearm-use-causing-death enhancement, plus 10 years, stayed, pursuant to section 12022.53, subdivision (f), for the firearm use enhancement, plus one year for the prior prison term. The court imposed a consecutive upper term of three years on count 2, plus imposed but stayed a one-year term on the prior prison term. The court also imposed a concurrent upper term of three years on count 3.

Appellant and respondent make various claims of error on the abstracts of judgment. We address each contention in turn and order several changes. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order abstracts of judgment corrected that do not accurately reflect oral judgments of sentencing courts].)

First, appellant contends that the determinate term abstract of judgment (form CR‑290) erroneously includes terms from the indeterminate term abstract of judgment (form CR‑292), showing a total determinate term of 44 years. As argued by appellant, the determinate term imposed was three years plus one year for the prior prison term on count 2, for a total determinate term of four years. Respondent states it has no objection to the requested correction.

We find first that the determinate term was for three years, not four. The one-year prior prison term which was imposed but stayed in item No. 3 of form CR‑290 must be stricken. We order that item No. 8 on form CR‑290 be changed to reflect a total time of three years, not 44. We also order that the 41 years listed in item No. 6 of the same form be deleted and left blank. This item No. 6, listed as total time on attached pages, when properly used, refers to additional counts that cannot be listed on item No. 1 of form CR‑290 due to space constraints, not to an indeterminate term listed on the separate form CR‑292.

Next, both appellant and respondent agree that form CR‑290 be amended to reflect that the conviction in count 2 is for a violation of Health and Safety Code section 11378 and not section 11368. We agree and order it so corrected.

Respondent asks that form CR‑292, item No. 2, accurately reflect that the sentence on the section 12022.53, subdivision (d) enhancement is 25 years to life rather than the 25 years shown. We agree and order it so corrected.

Finally, we order, consistent with our decision in part 3, ante, that the section 12022.5, subdivision (a) enhancement listed on form CR‑292, item No. 2, be stricken.

DISPOSITION

The judgment is modified to strike the stayed section 667.5, subdivision (b) enhancement, to strike the section 12022.5, subdivision (a) enhancement and is otherwise affirmed. The court is directed to correct form CR‑290 to reflect in item No. 1 that the conviction in count 2 is for a violation of Health and Safety Code section 11378; that the determinate term in item No. 8 is three years, not 44; that the 41 years in item No. 6 is deleted, and that the section 667.5, subdivision (b) enhancement listed in item No. 3 is stricken. The court is also directed to correct form CR‑292 to reflect in item No. 2 that appellant was sentenced to 25 years to life on the section 12022.53, subdivision (d) enhancement, and that the section 12022.5, subdivision (a) enhancement is stricken. The court is directed to forward a copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation.

DAWSON, Acting P.J.

WE CONCUR:

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HILL, J.

_______________________________

KANE, J.

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^[1]Charged, tried, and convicted as Jason Robert Neal.

^[2]All further statutory references are to the Penal Code unless otherwise stated.

^[3]All further rule references are to the California Rules of Court.

^[4]We disagree with appellants claim that his stipulation that he possessed 13.3 grams of methamphetamine could not properly be used as a factor in aggravation because the quantity was also used to prove an element of the offense. CALCRIM No. 2302, given to the jury, required that the jury find that the controlled substance possessed for sale was in a usable amount, enough to be used by someone as a controlled substance, but need not be enough in either amount or strength, to affect the user. The instruction did not specify that it had to be a large quantity.

^[5]Appellant also had a prior conviction for possession of a controlled substance, but since it was used as part of a prior prison term enhancement, it will not be considered a prior conviction for aggravating circumstances. (Rule 4.420(c).)

^[6]The issue of whether to strike, stay or simply not impose the lesser enhancement when separate firearm enhancements under section 12022.5 and subdivisions (b), (c) and/or (d) of section 12022.53 are found true is currently pending before the California Supreme Court in People v. Gonzalez, S149898, review granted March 14, 2007.