Filed 9/18/18 P. v. Vasquez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Andres Vazquez is serving an indeterminate term of 16 years to life after a jury convicted him in 2004[1] of discharging a firearm, assault with a firearm, and gang participation, with priors and enhancements. Defendant asks this court to remand his case to the trial court for resentencing after two letters in 2017 from the California Department of Corrections and Rehabilitation (CDCR) failed to achieve the necessary corrections to his sentence and record of conviction. The People agree, for the most part, so we remand to the trial court for resentencing.

Statement of the Case

On March 18, 2004, a jury found defendant guilty of shooting at an occupied vehicle (Pen. Code, § 246, count 1);[2] assault with a firearm (§ 245, subd. (a)(2), count 2); and participating in a criminal street gang (§ 186.22, subd. (a), count 3). The jury also found true allegations in counts 1 and 2 that defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) and personally used a firearm (§§ 667,[3] 1192.7, subd. (c)(8)). On May 14, 2004, defendant admitted to having a prison term prior. (§ 667.5, subd. (b).)

On August 13, 2004, the court sentenced defendant to 16 years to life as follows: five years each for count 1 and the firearm allegation to count 1, both stayed, plus an indeterminate term of 15 years to life for the gang allegation to count 1; a stayed sentence of one-third the middle term, or one year, for count 2 and stayed five-year sentences for the two allegations to count 2; a stayed sentence of one-third of the middle term, or eight months, for count 3; and one year consecutive for the prison conviction prior.

This court affirmed defendant’s conviction in an opinion filed February 15, 2006. (People v. Vasquez (Feb. 15, 2006, E036482) [nonpub. opn.].)

On August 21, 2017, the legal processing unit of the CDCR mailed the trial court a letter informing the court it erroneously imposed a consecutive indeterminate 15-year-to-life “enhancement” pursuant to section 186.22, subdivision (b)(4),[4] on count 1 because that section “is not an enhancement with a separate term, but rather allows the count to be sentenced to the indeterminate term of 15 years to life.”

On October 17, 2017, the court recalled the matter, held a hearing at which defendant was represented by the Riverside County Public Defender, and vacated the 2004 sentence. The minute order from that date states the court then imposed the indeterminate term of 15 years to life on count 1, but purportedly imposed concurrent zero-year terms for the section 186.22, subdivision (b)(4), and section 667 “enhancements”; the court further stayed the one-third of the middle terms on counts 2 and 3 under section 654 and on count 2, as it did on count 1, imposed concurrent zero-year terms for the section 186.22, subdivision (b)(4), and section 667 “enhancements.” The minute order also states that defendant “has One prior conviction(s) that qualifies as a strike” and that appellant “was sentenced pursuant to 667(B) through (I) PC or 1170.12 PC.” The first amended abstract of judgment, filed on October 23, 2017, reflects these terms and notations.

On November 17, 2017, CDCR mailed a letter to the trial court asking for further clarification, noting the amended abstract of judgment and minute order still contained a “discrepancy”—the documents “reflect two enhancements tied to count 2, PC § 186.22(b)(4) and PC § 667, both with 0 years imposed concurrently; however, Count 2 is stayed.” On November 29, 2017, the court conducted an ex parte hearing in response to the letter and concluded no corrections to the order of October 17, 2018, were necessary.

This appeal followed.

Discussion

The errors requiring correction fall into three main categories: (1) The incorrect designation of the gang allegation on counts 1 and 2 as “enhancements” instead of an alternate sentencing scheme, and the incorrect designation of the personal firearm use allegations on counts 1 and 2 as “enhancements”; (2) the reference to a nonexistent “strike” prior; and (3) the imposition of the one-third-the-middle-term rule for the stayed sentences in counts 2 and 3. The parties and this court agree in large part on the need for the changes to the record on these points, as described in detail post.

1. The True Findings on the Allegations Are Not “Enhancements.”

As defendant argues, and as the CDCR pointed out in its letter of August 21, 2017, the section 186.22, subdivision (b)(4) finding attached to counts 1 and 2 is not a sentence enhancement, but rather is an “alternate penalty provision” or alternate sentencing scheme. (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.) An alternate penalty provision “sets forth an alternate penalty for the underlying felony itself”; it is not a sentence enhancement because it does not add an additional term of imprisonment to the base term, and instead provides for an alternate sentence. (People v. Jones (2009) 47 Cal.4th 566, 576.) For this reason, all four references to section 186.22, subdivision (b)(4), as an “enhancement” should be stricken from the minute order of October 17, 2017. In the abstract of judgment, the two references to section 186.22, subdivision (b)(4), should be stricken from the “enhancements” section. Instead, in “section 8” of the amended abstract of judgment, the court may check the box next to “other (specify)” and write in Penal Code section 186.22, subdivision (b)(4). The court will want to note in the new minute order that the jury found true the allegations that defendant acted to benefit a criminal street gang as to counts 1 and 2, citing section 186.22, subdivision (b)(4).

Similarly, the personal use of a firearm findings attached to counts 1 and 2 are not enhancements, but rather qualify counts 1 and 2 as strikes for the purpose of any future prosecutions. (§ 1192.7, subd. (c)(8).) For this reason, the trial court should strike the four references to section 667 as enhancements in the minute order of October 17, 2017, as well as the notation, “Court does not impose any commitment time on any of the enhancements.” The court will also need to delete from that minute order, “Defendant was sentenced pursuant to 667(B) through (I) PC or 1170.12 PC,” because the personal use findings had no effect on defendant’s current sentence. In the abstract of judgment, the checkmark in section No. 8 should be removed from the box next to “PC 667(b)-(i) or PC 1170.12,” again because the personal use findings had no effect on defendant’s current sentence. The trial court will want to note in the new minute order that the jury found true the allegations regarding personal use of a firearm as to counts 1 and 2.

2. No Strike Prior; Current Offenses Are the First Strikes.

A prior “strike” conviction under the three strikes law is defined either as a violent felony under section 667.5, subdivision (c), or a serious felony under section 1192.7, subdivision (c). (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) A strike allegation must be pled and proven. (§§ 667, subd. (c), 1170.12, subd. (a).) Here, the amended information did not plead a strike allegation, the People did not prove one, and no strike was factored into defendant’s sentence. Therefore, defendant has no prior strike convictions. The minute order for the October 17, 2017 resentencing states: “Defendant has One prior conviction(s) that qualifies as a strike.” This must be stricken from the minute order because it is not accurate.

3. Counts 2 and 3 Must Be Imposed as Full Middle Terms, Then Stayed.

The minute order for October 17, 2017, reflects that the trial court incorrectly imposed one-third of the middle term for counts 2 and 3, and then stayed them under section 654. “ ‘The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654.’ [Citation.] To effectuate section 654, the trial court must impose a full term and stay execution of that term.” (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198.) We therefore order the trial court to resentence defendant on counts 2 and 3 to the full middle terms, and then stay them pursuant to section 654.

Disposition

Defendant’s convictions are affirmed. The matter is remanded to the trial court to resentence defendant in accordance with this opinion. The trial court is directed to send copies of the amended abstract of judgment and sentencing minute orders to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.