PEOPLE v. GONZALEZ

Filed 8/29/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

APPEAL from a judgment of the Superior Court of El Dorado County, Eddie T. Keller, Judge. Affirmed as modified.

Hilda Scheib, under appointment by the Court of Appeal,

For Defendants and Appellants.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Stephen G. Herndon and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants Luis Lopez Arriaga and Silvestre Garcia Gonzalez were convicted of attempted murder of William Hunt, and the jury

found that the crime was willful, premeditated, and deliberate (Pen. Code, §§ 187, 664; further section references are to the Penal Code unless otherwise specified). The jury also found that Arriaga personally used, personally discharged, and caused great bodily injury with a firearm (§§ 12022.5, subd. (a)(1); 12022.53, subds. (a)-(d)), and that Gonzalez was armed with a firearm (§ 12022.5 subd. (a)(1)). On defendants' previous appeal, we reversed the convictions and special findings of both defendants for attempted murder of Matthew Hunt, vacated the sentences and remanded for resentencing.

On resentencing, Arriaga was sentenced to state prison for life with the possibility of parole, plus 25 years to life for the firearm enhancement, the terms to run consecutively. Gonzalez was sentenced to prison for life with the possibility of parole, plus one year for the armed enhancement, the terms to run consecutively.

On appeal, defendants raise several claims of error. We shall order a correction to defendant Gonzalez's abstract and affirm the judgments.

FACTS^[1]

While deer hunting in October 2000 with his eight-year-old son, Matthew, and four-year-old son, Riley, William Hunt heard a shot and was hit in the left wrist and arm by a shotgun blast.^[2] As he turned to look for the boys, he heard a second shot and was struck in the midsection. He then saw that Matthew had been shot in the forehead and face and was lying prone on the ground.

Shortly after the shots were fired, defendant Arriaga and his son, Mario Lopez, came down the hill. Arriaga was carrying a shotgun and looked angry. Lopez appeared upset. The men helped William and the boys down the hill to William's truck. William, an emergency medical technician, was able to provide preliminary care to himself and Matthew. He then got into his truck and began honking the horn. William's brother, Donald, who was hunting in a nearby area, heard the horn and responded. Donald drove the truck out to the highway, where they came upon a forest service crew. The crew provided first aid while emergency transportation was arranged. Both victims survived.

The mountain property on which the Hunts were hunting is a large parcel known as the Davis property. It is held in a trust established for the benefit of the trustors' grandchildren. William and Donald are among those grandchildren. The Hunts also have access to a contiguous parcel, known as the Bacchi property, owned by relatives of the Hunts.

Defendant Gonzalez, who was married to a sister of William and Donald Hunt, had spent time on the properties with his wife. An investigation revealed that Gonzalez used the properties for the surreptitious cultivation of large amounts of marijuana. About one month before the shootings, law enforcement agents had found and destroyed three large gardens on the Bacchi property. It is apparent, however, that they did not discover and eradicate all of the marijuana being grown in the area.

Defendant Arriaga's son, Mario Lopez, testified that during the summer before the shootings, Gonzalez hired Arriaga to stay on the property in order to tend and guard the marijuana gardens. Gonzalez gave Arriaga a shotgun and told him to shoot anyone that came near the marijuana. (Lopez attempted to describe the comment as a joke and said that Gonzalez had been drinking at the time.) Another of Arriaga's sons, Arturo Lopez, testified that he heard Gonzalez tell other workers to shoot anyone who came near the marijuana.

From time to time, Mario would give Gonzalez a ride to the property. On a couple of occasions, Mario took his sons there to fish in the lake. Mario and his sons went to the property on the day of the shootings.^[3] As Mario approached the area where

Arriaga was, he heard a gunshot and then, seconds later, heard another. He ran to where the shots came from and saw William, wounded and sitting on a log. He saw Arriaga nearby with a shotgun. Mario told Arriaga to drop the gun and, at Mario's direction, they helped the victims.

After the shootings, both defendants fled from the region. Gonzalez ultimately was located and arrested in Rohnert Park, Sonoma County. Arriaga was located and arrested in Sunnyvale, Santa Clara County.

DISCUSSION

I

Cruel or Unusual Punishment

Defendant Arriaga contends that imposition of the consecutive 25 years to life sentence for the section 12022.53, subdivision (d), firearm enhancement constitutes cruel and unusual punishment. However, the trial court imposed on remand the same term for the attempted murder of William Hunt and the firearm enhancement that defendant received originally. The only difference from Arriaga's previous sentence was that he had originally received an additional consecutive term of life with the possibility of parole, plus 25 years to life for the firearm enhancement, for the crimes against Matthew Hunt. Arriaga did not contest the constitutionality of the firearm enhancement in his previous appeal.

"[W]hen a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have [forfeited] the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay." (People v. Senior (1995) 33 Cal.App.4th 531, 533 (Senior).) This rule is applied where, as here, "(1) the issue was ripe for decision by the appellate court at the time of the previous appeal; (2) there has been no significant change in the underlying facts or applicable law; and (3) the defendant has offered no reasonable justification for the delay." (Id. at p. 538.)

As defendant could have contested the constitutionality of his sentence in his initial appeal and has not made a showing of good cause or justification for the delay, he forfeited his right to raise this contention in this subsequent appeal. (Senior, supra, 33 Cal.App.4th 531.)

II

Imposition of Firearm Enhancements

In sentencing defendant Arriaga, the trial court imposed the firearm enhancement pursuant to section 12022.53, subdivision (d), and imposed but stayed the firearm enhancements found true under sections 12022.5, subdivision (a)(1), and 12022.53, subdivisions (b) and (c). Arriaga contends the additional firearm enhancements must be stricken, not stayed.^[4] Although the trial court also stayed the additional firearm enhancements when it originally sentenced Arriaga, Arriaga is not prevented from raising this issue for the first time in this appeal.

The trial court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence or fails to impose or strike an enhancement. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Bradley (1998) 64 Cal.App.4th 386, 391.) An unauthorized sentence involving pure questions of law is reviewable at anytime. (People v. Smith (2001) 24 Cal.4th 849, 852-854.) Thus, we address whether the trial court erroneously imposed and stayed punishment on the additional firearm enhancements.

Relying upon section 12022.53, subdivision (f), Arriaga contends the sections 12022.5, subdivision (a)(1), and 12022.53, subdivisions (b) and (c), enhancements must be stricken. We agree that these findings must be stricken.

Under section 12022.53, subdivision (f), "[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An 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."^[5]

The People acknowledge section 12022.53, subdivision (f), and agree that the enhancements may not be imposed, even if stayed. They argue, however, that there is "no legal authority to strike the findings, because the Legislature has unequivocally stripped the courts of such authority" by enacting subdivision (h). Thus, they argue the "order imposing such additional enhancements must be reversed or vacated, returning such enhancements to non-imposed status."

Section 12022.53, subdivision (h), provides: "Notwithstanding Section 1385 or any other provision of law, the

court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."

The statutory scheme clearly intends that when multiple enhancements are found true, only the enhancement with the longest term of imprisonment should be imposed. The question is, what is to be done with the lesser enhancement findings?

The People contend that subdivision (f) prevents the imposition of punishment on the lesser enhancements and subdivision (h) prevents the court from striking the lesser enhancement findings. Thus, they conclude the only remaining alternative is to not sentence on those enhancements, essentially suspending imposition of sentence. Yet, it is the duty of the court to pass sentence on the defendant and impose the prescribed punishment. (§ 12; People v. Cheffen (1969) 2 Cal.App.3d 638, 641.) "Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion." (Ibid.) Thus, the failure to pronounce sentence on all counts and enhancements, as proposed by the People, would result in an unauthorized sentence. (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) Moreover, simply not dealing with the lesser enhancements in any manner would cause unnecessary and disruptive uncertainty in the trial court and Department of

Corrections and Rehabilitation. Neither entity would know what to do with these unprecedented "lurking" enhancements.

In People v. Bracamonte (2003) 106 Cal.App.4th 704, the Court of Appeal, Second Appellate District, Division Four attempted to harmonize subdivisions (f) and (h) by concluding that "the plain and clear language that a section 12022.5 firearm use enhancement shall not be imposed . . . in addition to an enhancement imposed pursuant to . . . section [12022.53]" is mandatory and, therefore, a section 12022.5 enhancement must be stricken when the greater section 12022.53 enhancement is imposed. (Bracamonte, supra, at pp. 711-713.) With respect to the lesser section 12022.53, subdivisions (b) and (c), enhancements, Bracamonte reached a different conclusion. Construing section 12022.53, subdivision (h), as expressly prohibiting the court from striking the lesser enhancements and conflicting with subdivision (f), the court concluded that "section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term." (Bracamonte, supra, at p. 713.)

We disagree with Bracamonte's conclusion that the lesser section 12022.53 enhancements should be imposed and then stayed. Section 12022.53, subdivision (f), expressly states that only

the greatest enhancement may be imposed, making no exception to this prohibition for enhancements thereafter stayed. Nor does the trial court otherwise have any authority to stay the lesser enhancements. Unless a statute provides otherwise, an enhancement may be imposed or stricken, but it may not be stayed; to do so is an illegal sentence. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589.) Moreover, we do not interpret section 12022.53, subdivision (h), as prohibiting the striking of lesser included enhancement findings that are rendered superfluous by the required imposition of the greater enhancement in the same statutory provision.

" 'The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.' [Citations.]" (People v. Thomas (1992) 4 Cal.4th 206, 210.) We do not, however, construe statutes in isolation, but rather, read every statute " 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' [Citation.]" (Ibid.) The provisions must be "construed according to the fair import of their terms, with a view to effect its objects and to promote justice." (§ 4.)

Section 12022.53, subdivision (a), begins by setting forth the felonies to which the section applies. Subdivisions (b), (c) and (d) then specify the applicable enhancements for firearm

use and discharge in the commission of the enumerated felonies. Subdivision (e) discusses the applicability of the enhancements to principals and participation in street gangs. Subdivision (f) then states that only one enhancement under section 12022.53 may be imposed and that it must be the one providing for the longest period of imprisonment. It also provides, as set forth herein, that an enhancement under section 12022.5 may not be imposed in addition to the section 12022.53 enhancement.

Subdivision (g) then follows by providing that, "[n]otwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section." It is in this context that subdivision (h) follows and provides that "[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."

Read in context, considering its placement within the section, and using common sense construction, we conclude that subdivision (h) prohibits the court from exercising discretion to strike an allegation or finding under section 12022.53. It is not meant to prohibit the court from striking a superfluous lesser enhancement under this same section. By its plain language, subdivision (h) prohibits striking the enhancement or finding "[n]otwithstanding Section 1385 or any other provision

of law[.]" (Italics added.) The statute does not prohibit the striking of the finding in accordance with this provision of law.

Applying the doctrine of ejusdem generis to section 12022.53, subdivision (h), supports this statutory construction. Ejusdem generis (literally, "of the same kind") (Engelmann v. State Bd. of Education (1991) 2 Cal.App.4th 47, 56, fn. 11), provides that where general words follow specific words, or specific words follow general words in a statutory enumeration, the general words are construed to embrace only things similar

in nature to those enumerated by the specific words. (2A Sutherland, Statutory Construction (6th Ed. 2000) Intrinsic Aids, § 47.17, pp. 272-274; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1160.)

Subdivision (h) specifically identifies section 1385, the provision permitting the trial court to strike or dismiss an enhancement or punishment in furtherance of justice, prior to the language "or any other provision of law." The specific inclusion of section 1385 indicates the Legislature intended by subdivision (h) to prevent the trial court from exercising its discretion to dismiss or strike the enhancement, not to prevent the trial court from properly sentencing under this section. The Legislature has been expressly warned by the California Supreme Court that the trial court's discretion to strike charges, findings and enhancements pursuant to section 1385

remains intact "in the absence of a specific indication by the Legislature to the contrary." (People v. Williams (1981) 30 Cal.3d 470, 483; see also People v. Superior Court (1968) 69 Cal.2d 491, 502 ["the discretion of the judge [under section 1385] is absolute except where the Legislature has specifically curtailed it"].)

To be continue as Part II ---

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^* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I, III and IV.

^[1] The facts are taken from our previous opinion in this case, which is contained in the clerk's transcript. (People v. Arriaga (Jan. 22, 2003) C038855 [nonpub. opn.].)

^[2] For simplicity and to avoid confusion, we hereafter will refer to the Hunts by their first names.

^[3] Mario testified that Gonzalez had asked for a ride to the property on the morning of the shootings. However, when Mario arrived at Gonzalez's home, he did not appear to be there. Mario assumed that Gonzalez had gotten another ride to the property, so Mario and his sons drove there without him.

^[4] The issue of whether the multiple punishment bar of section 654 applies to sentence enhancements and, in particular to imposition of multiple enhancements for the single discharge of a firearm resulting in great bodily injury or death under section 12022.53, subdivision (d), is currently pending before the California Supreme Court in People v. Palacios, S132144, review granted May 11, 2005.

^[5] Section 12022.53, subdivision (j), provides in part that "[w]hen an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment."