Filed 10/25/18 P. v. Dominguez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed as modified with directions.

Lindsey M. Ball, 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, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Julian Dominguez and a codefendant were convicted of robbery among other charges after a jury trial. The codefendant's case is not before us.

Dominguez was convicted of one count of robbery (Pen. Code,[1] § 211). The jury found the gang allegation (§ 186.22, subd. (b)(1)) to be true. Dominguez admitted one serious felony prior conviction (§ 667, subd. (a)(1)); one strike prior (§ 667, subds. (b)-(i)) and two prison priors (§ 667.5, subd. (b)).

The court sentenced Dominguez to a 16-year determinate term, consisting of the upper term of five years for robbery, doubled to 10 years based upon the strike prior. The court imposed a consecutive five-year term for the serious felony prior and a consecutive one-year term for one of the prison priors. The court stayed the term for one prison prior and stayed the 10-year term for the gang enhancement. The court imposed a restitution order of $1,450, which was later modified to $900.

Dominguez appeals challenging only the sentence. He contends the court erred in staying the sentence for the gang enhancement and argues we should strike the enhancement based on the trial court's comments at sentencing. He also contends the abstract of judgment must be amended to show that the restitution ordered is joint and several between Dominguez and his codefendant. The People agree the court erred in staying the term for the gang enhancement. The difference in their position from that of Dominguez is that the People urge us to remand the case for the court to exercise its discretion to either strike or impose the enhancement. The People agree the abstract of judgment should be amended regarding restitution.

We believe the trial judge was very clear that based upon the nature of the criminal activity in this case, the additional 10-year term was not warranted. There is no doubt the court did not want to impose the enhancement based upon its assessment of the crime and the defendant. It would be a waste of judicial resources to remand this back for what would be a ministerial act. We will strike the enhancement and remand for amendment of the abstract of judgment.

STATEMENT OF FACTS

Given the limited issues on this appeal, we find it unnecessary to set forth a full statement of facts. We will adopt the summary of facts from the respondent's brief, simply to provide background for the discussion which follows.

Appellant and his codefendant Jaime Arteaga robbed 17-year-old Luis G. at knifepoint as Luis was leaving a volleyball game he had been photographing. They took his Canon camera, some lenses, his tripod, his camera bag, $150 in cash, his watch, and a gold chain from his neck. On the gold chain Luis carried a ring that a friend had given him.

Appellant and his codefendant were both Logan Treinta gang members. The prosecution's expert testified that they committed the robbery to benefit their gang.

Another gang expert testified on behalf of the defense. In his opinion, appellants committed "a personal crime" and not a gang-related offense because they did not announce their gang affiliation when they robbed the victim. Since "nothing was recognized" or "attributed to [a] specific gang," the expert found no "gang connection" to the crime.

DISCUSSION

At the sentencing hearing, the court expressed its reservations regarding imposition of the 10-year term for the gang enhancement. It rejected the prosecutor's argument that striking the enhancement would result in the defendants "walking." The court said, "If you strike the 10 years, you're still arguing that Dominguez gets 17 years, [co-defendant] gets 19 years. I mean, that's no walk in the park."

The court later gave a more detailed expression of it reasons for not adding 10 years to Dominguez's term. The court said:

"I'm sure you all know I've been around a long time. I was a defense attorney, I was a prosecutor, and I've been up here 36 years in June. I've seen probably more gang cases than anybody in town, and there's different levels of gang activity. I understand how people can get involved with gangs, stay in gangs. It's hard to get out of a gang because it's like the movie with Al Pacino, I tried to get out and they keep bringing me out. That's what happened here.

"It's the only life these guys know. Why do I think that way? Because I think that there are different levels of gang activity. I think when you go out, you shoot people or get in a gun fight, you get into a gang fight, whatever, and you know, that's one level. In this case, this was – it wasn't a soft gang activity, but it's still at the same time, except for his feelings, his emotions, the victim was not harmed. And the question is, would they have harmed him? I don't know if – I mean, I was surprised that when they said, come on over here, I was surprised that he even went over there, that he didn't take off running. But that shows his naivete. And going to North Park, knowing that's a gang area, why did you even go there if you know it's that bad. But that doesn't justify what the defendants did in this case. All right.

[¶] . . . [¶]

"Now, I come to the ten-year allegation. We had a decent discussion about it and I think that I gave some of my attitude about it in terms of the level of activity. In this court's opinion, based on other sentences and cases I've handled, based on other gang cases I've handled, I don't feel the level of activity in this case is justified by the 10-year sentence. So, in both of their situations, I'm going to stay the ten-year allegation under [section] 186[, subdivision] (22)(B)(1) and I do find it's in the interest of society, in the interest of these fellas. Of course, I think that the sentence that I will be giving is sufficient punishment for the activity."

We cannot read the court's comments to mean anything other than it would be unjust to add the 10-year term for the enhancement.

In People v. Vega (2013) 214 Cal.App.4th 1387, 1396-1397 (Vega) the court determined that the term under section 186.22, subdivision (b)(1) could not be stayed. Trial courts are required to either impose the term, or strike the enhancement in their discretion. In Vega the court remanded the case for the trial court to exercise its discretion and if the choice was to strike the enhancement, to place the reasons into the court's minutes under the circumstances of that case. The People urge us to remand so that the court can clarify its sentencing choice. (People v. Lua (2017) 10 Cal.App.5th 1004, 1021-1020.)

Here there had been a reference in the colloquy with the prosecutor where the term striking had been used. If that was all we had to consider, remand would seem appropriate. However, while the court's sentence choice (staying the enhancement) was unauthorized, the court made very clear its conclusion the enhancement term would be unjust on these facts and expressed its reasons at length. There is no need to further clarify why this trial judge would not impose the added term.

The trial court was fully aware it had discretion to impose, or not impose the term. (People v. Smith (1997) 59 Cal.App.4th 46, 50-51.) We have the authority to modify the judgment on appeal where the trial court has expressed is reasons with sufficient clarity for us to know why the decision was made and that it is lawful, albeit not correctly stated. (Code Civ. Proc., § 43; People v. Howington (1991) 233 Cal.App.3d 1052, 1060.) Here the judge was aware of the authority to not impose the enhancement and stated reasons for his choice. He picked the wrong mechanism, which we can correct on appeal without exercising sentencing discretion. We order the enhancement under section 186.22, subdivision (b)(1) stricken and the abstract of judgment amended accordingly.

With regard to the restitution order, we agree with the parties. Restitution here was ordered in accordance with the probation report, which called for joint and several liability for the two defendants. We have granted the respondent's request for judicial notice of the modification of the restitution order, done by the superior court on March 21, 2018. The order is now set in the amount of $950.

DISPOSITION

The judgment is amended to strike the enhancement under section 186.22, subdivision (b)(1). The case is remanded to the superior court with directions to amend the abstract of judgment to reflect striking the enhancement and to provide restitution in the amount of $950 as a joint and several liability among both defendants. In all other respects the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.