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)

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Continue from Part I ---

Our interpretation of the statute is also supported by the later amendment to section 12022.5 to include the exact same language in subdivision (c) that "[n]otwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." Statutes 2002, chapter 126, section 13 provides, that "[t]he amendments to subdivision (c) of section 12022.5 of the Penal Code, in section 3 of this act, to prohibit striking the enhancement, are intended to be declaratory of existing law as contained in People v. Thomas (1992) 4 Cal.4th 206, and People v. Ledesma (1997) 16 Cal.4th 90." Thomas held that the trial court does not have discretion pursuant to section 1385 to strike the firearm use enhancement under section 12022.5. (People v. Thomas, supra, 4 Cal.4th at p. 213.) Ledesma held that section 12022.5 is mandatory and does not by its terms grant the trial court discretion whether or not to impose the enhancement. (People v. Ledesma, supra, 16 Cal.4th at pp. 94-95, 97-98.)

We do not consider the striking of the lesser included enhancements in accordance with subdivision (f), which provides that only the enhancement providing for the longest period of imprisonment may be imposed, to be groundbreaking. A defendant cannot stand convicted of both a greater and a lesser included offense. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Pearson (1986) 42 Cal.3d 351, 355.) To permit conviction of both the greater and the lesser offense would be to convict the defendant twice of the lesser offense. (People v. Ortega, supra, at p. 705, citing People v. Fields (1996) 13 Cal.4th 289, 306.) When a jury finds a defendant guilty of both the greater and lesser included offense, the defendant is punished for the greater offense and the lesser included offense is stricken. (See People v. Moran (1970) 1 Cal.3d 755, 763.) The lesser included offense is not left "in limbo," nor is it stayed. This is true even if the offense is one contained in section 1203.06 -- offenses for which imposition or execution of sentence may not be stayed and which the trial court is not authorized to strike under section 1385. (See People v. Tanner (1979) 24 Cal.3d 514, 520 [trial court may not strike crimes falling within section 1203.06 pursuant to section 1385].)

Finally, we agree with the court in Bracamonte that, if a lesser enhancement is stricken and the greater enhancement is later reversed on appeal, the lesser enhancement "would be revived by operation of law." (Bracamonte, supra, 106 Cal.App.4th at p. 713, fn. 5.) When we reverse on appeal a greater enhancement on grounds not applicable to a lesser enhancement, we can reinstate the lesser enhancement findings. (See § 1260.) Likewise, when a greater enhancement is invalidated in a state habeas corpus proceeding, the habeas court may reinstate the lesser enhancement findings. (See §§ 1484, 1489; In re Bower (1985) 38 Cal.3d 865, 880.) This procedure is already used in the analogous situation of lesser included offenses for which a defendant cannot stand convicted despite a guilty verdict. Thus, striking the findings rather than staying punishment on the lesser enhancements does not prejudice the People.

III

DNA Sampling

At sentencing, the trial court imposed DNA sampling pursuant to section 296, which requires a defendant convicted of enumerated crimes to provide a blood sample. Attempted murder is one of the enumerated crimes. Defendant Gonzalez now asserts this requirement is a violation of his Fourth Amendment right against unreasonable search and seizure.

The trial court, however, also imposed DNA sampling pursuant to section 296 when it originally imposed sentence

prior to Gonzalez's earlier appeal. Yet, Gonzalez did not raise this in his previous appeal, nor has he shown good cause or justification for the failure to do so. Thus, he forfeited his right to raise this contention in this subsequent appeal. (Senior, supra, 33 Cal.App.4th 531.)

IV

Abstract of Judgment

Finally, defendant Gonzalez notes the abstract of judgment contains an error in that it does not properly reflect his sentence of life with the possibility of parole on the attempted murder conviction. The People appropriately concede that the abstract must be corrected. The abstract of judgment should be corrected to reflect Gonzalez's sentence of life with the possibility of parole on the attempted murder conviction. (See generally People v. Rowland (1988) 206 Cal.App.3d 119, 123-124.)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment reflecting defendant Gonzalez's sentence of life with the possibility of parole on the attempted murder conviction. The trial court is further directed to prepare an amended abstract of judgment striking defendant Arriaga's findings and vacating the sentences on the sections 12022.5 and 12022.53, subdivisions (b) and (c) enhancements. As so modified, the judgments are affirmed. The trial court is

directed to forward certified copies of the corrected and amended abstracts of judgment to the Department of Corrections and Rehabilitation.

_______MORRISON_________, J.

I concur:

BLEASE , Acting P.J.

ROBIE, J., Dissenting.

With regard to part II of the Discussion of the majority opinion and the opinion's disposition, I respectfully dissent.

Before I explain why, I believe it is important to clarify the terminology of sentence enhancements. "By definition, a sentence enhancement is 'an additional term of imprisonment added to the base term.' " (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898, quoting Cal. Rules of Court, rule 4.405(c).) The statutes at issue here -- Penal Code^[1] sections 12022.5 and 12022.53 -- both provide various sentence enhancements for the use of a firearm in the commission or attempted commission of a crime.^[2]

For these sentence enhancements to apply to a particular defendant, the requisite facts (e.g., personal use of a firearm in the commission of attempted murder) must be alleged in the information or indictment. (See § 12022.53, subd. (j); People v. Najera (1972) 8 Cal.3d 504, 509, fn. 4.) This is a sentence enhancement allegation.

Also for these sentence enhancements to apply, the requisite facts, as alleged, must be admitted by the defendant or found true by the trier of fact. (See § 12022.53, subd. (j); People v. Najera, supra, 8 Cal.3d at pp. 509-510.) The latter is a sentence enhancement finding.

Thus, we have enhancement allegations, enhancement findings, and the actual sentence enhancements.

With that understood, I turn to the issue in this case. Here, the information contained the requisite enhancement allegations, and the jury made the requisite enhancement findings, to impose on defendant Arriaga the various sentence enhancements provided by section 12022.5, subdivision (a), and section 12022.53, subdivisions (b), (c), and (d). As my colleagues note, the trial court imposed the 25-year-to-life sentence enhancement provided by section 12022.53, subdivision (d), and imposed but stayed the various other sentence enhancements pursuant to section 12022.5, subdivision (a), and section 12022.53, subdivisions (b) and (c). (I will refer to these various other sentence enhancements as the additional sentence enhancements.)

I agree with my colleagues that the trial court erred in imposing, then staying, the additional sentence enhancements. I do not agree, however, that the proper course is to strike those enhancements, let alone to strike the underlying enhancement findings, as my colleagues are inclined to do. I believe subdivisions (f) and (h) of section 12202.53 can be reconciled much more simply than my colleagues propose, in a way that does not contravene any other law.

As my colleagues note, subdivision (f) of section 12022.53 (section 12022.53(f)) provides in pertinent part: "Only 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." Thus, section 12022.53(f) specifies what the trial court must do when (as here) the jury makes multiple enhancement findings under this section and section 12022.5 for a single crime. What the trial court must do is impose only one sentence enhancement -- the one that provides the longest term of imprisonment -- regardless of how many enhancement findings the jury has made.

Section 12022.53(f) does not say what the trial court should do, if anything, about the enhancement findings. Guidance on that point, however, is found in subdivision (h) of section 12022.53 (section 12022.53(h)), which 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."^[3] (Italics added.) Thus, section 12022.53(h) tells the trial court to leave the enhancement findings alone.

Here, the jury made four enhancement findings, finding true three enhancement allegations based on section 12022.53 and one enhancement allegation based on section 12022.5. Under the first and second sentences of section 12022.53(f), the trial court was authorized to impose only one sentence enhancement based on the three section 12022.53 enhancement findings the jury made -- specifically, the sentence enhancement that provided the longest term of imprisonment, which was the "additional and consecutive term of imprisonment in the state prison for 25 years to life" under subdivision (d) of section 12022.53. Having imposed that sentence enhancement on defendant, the court was then prohibited by the third sentence of section 12022.53(f) from imposing a sentence enhancement under section 12022.5.

Since the court had no authority in the first place to impose any punishment based on the two lesser section 12022.53 enhancement findings or the section 12022.5 enhancement finding, it does not matter whether the court had the authority to strike those enhancement findings under section 12022.53(h) or any other provision of law. Instead of imposing punishment based on those findings, then staying the enhancements, the court simply should have left the enhancement findings in place, but not imposed any punishment based on them. If the court had done that, then the question of whether the court could strike those enhancement findings, or stay the imposition of punishment on them, would be moot.

The majority concludes, however, that simply not imposing punishment based on the three other enhancement findings would result in an unauthorized sentence, based on section 12, People v. Cheffen (1969) 2 Cal.App.3d 638, and People v. Price (1986) 184 Cal.App.3d 1405. I cannot agree.

Section 12 provides: "The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed." In Cheffen, the court observed that "[p]ursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion." (People v. Cheffen, supra, 2 Cal.App.3d at p. 641.) Unlike this case, however, Cheffen did not involve a statute that expressly directs the trial court to impose only one additional sentence enhancement based on several enhancement findings. In Cheffen, the trial court simply failed to pronounce sentence on three of the five charges of which the jury had found the defendant guilty. (Id. at p. 638.) Because there was no authority for the trial court to refuse to impose those sentences, the appellate court properly concluded that the trial court's failure in that regard violated its duty under section 12 to "impose the punishment prescribed." That is simply not the case here, however, because section 12022.53(f) specifically directed the trial court not to impose any punishment based on three of the four enhancement findings the jury made. It is perfectly consistent with section 12 for a court in this situation not to impose any punishment based on the three other enhancement findings because the trial court's duty under section 12 is only to impose "the punishment prescribed." Under section 12022.53(f), "the punishment prescribed" here was only the punishment for the section 12022.53, subdivision (d), sentence enhancement, because that was the only punishment section 12022.53(f) authorized the trial court to impose.

Nothing in Price alters this conclusion. In Price, while sentencing the defendant, the trial court failed to mention an enhancement on one of the defendant's convictions. (People v. Price, supra, 184 Cal.App. 3d at p. 1411.) In a footnote, the appellate court observed that "[t]he failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand." (Id. at p. 1411, fn. 6.) This is consistent with Cheffen. As in Cheffen, however, there was no authority for the trial court to refuse to impose the punishment prescribed for the enhancement at issue. Here, there is such authority. Indeed, as explained above, section 12022.53(f) prohibited the trial court from imposing punishment based on the two lesser section 12022.53 sentence enhancements and the section 12022.5 sentence enhancement.

Based on the foregoing analysis, I, too, "disagree with Bracamonte's conclusion that the lesser section 12022.53 enhancements should be imposed and stayed."^[4] But the proper solution to the supposed dilemma is not what the majority proposes. Rather than striking the lesser enhancements and the underlying enhancement findings (in contravention of section 12022.53(h)), the trial court simply does not impose any punishment based on those enhancement findings, as directed by section 12022.53(f). This is comparable to suspending the imposition of a sentence when granting probation. (See § 1203, subd. (a).) The underlying jury finding or verdict remains in place, but no punishment is imposed at that time.

I see no reason why these additional sentence enhancement findings, for which no punishment has been imposed, should cause any "disruptive uncertainty in the trial court and the Department of Corrections and Rehabilitation," as my colleagues fear. Section 12022.53(f) makes clear that although there may be multiple enhancement findings under sections 12022.5 and 12022.53 for any given crime in a particular case, only one sentence enhancement (the longest one) may be imposed based on those findings. And if the statute itself were not sufficiently clear, then certainly an opinion from this court, explaining the proper operation of the statute would be sufficient to remedy any uncertainty and prevent any disruption.

This solution (leaving the lesser enhancement findings in place) also has the virtue of not requiring the lesser sentence enhancement to be "revived by operation of law" in the event the greater sentence enhancement is reversed on appeal. If the greater sentence enhancement is reversed on appeal or invalidated in a state habeas corpus proceeding, then on resentencing the trial court can simply impose sentence based on the lesser enhancement finding, which has remained in place with no punishment imposed pursuant to section 12022.53(f).

Based on the foregoing analysis, I would reverse the judgment to the extent it imposed, then stayed, punishment on defendant Arriaga for the sections 12022.5 and 12022.53, subdivision (b) and (c), sentence enhancements. This would leave the underlying enhancement findings in place, as section 12022.53(f) contemplates and section 12022.53(h) requires.

ROBIE , J.

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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] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Specifically, subdivision (a) of section 12022.5 provides a sentence enhancement of 3, 4, or 10 years for anyone who personally uses a firearm in the commission of a felony or attempted felony. Subdivision (b) of section 12202.53 provides a sentence enhancement of 10 years for anyone who personally uses a firearm in the commission of an enumerated felony (including attempted murder). Subdivision (c) of that statute provides a sentence enhancement of 20 years for anyone who personally and intentionally discharges a firearm in the commission of one of the enumerated felonies. And finally, subdivision (d) of section 12022.53 provides a sentence enhancement of 25 years to life for anyone who personally and intentionally discharges a firearm and proximately causes great bodily injury or death to anyone other than an accomplice in the commission of one of the enumerated felonies.

^[3] A similar provision now appears in subdivision (c) of section 12022.5, but that provision was not added until 2002. (Stats. 2002, ch. 126, § 3, p. 4.)

^[4] People v. Bracamonte (2003) 106 Cal.App.4th 704.