Filed 11/20/18 P. v. Loia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Steven Loia guilty of one count of first degree murder. (Pen. Code, § 187, subd. (a).)[1] The jury also found true two separate enhancements under section 12022, subdivision (b)(1)—that defendant used a deadly or dangerous weapon (a knife and a baseball bat) in the commission of the crime. Defendant admitted that he had a prior serious felony conviction, within the meaning of section 667, subdivision (a), and sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). The court sentenced him to a total state prison term of 57 years to life, consisting of 25 years to life, doubled pursuant to the prior strike, plus a consecutive one year on each of the weapon enhancements, and five years on the prior serious felony conviction enhancement.

On appeal, defendant contends that the court improperly imposed terms for both of the weapon enhancements. We affirm.

FACTUAL BACKGROUND

A witness was walking in a parking lot to a store when he heard a commotion. He turned to look and saw defendant striking a woman in the head. The woman was hunched over and screaming. The witness ran over to help and saw defendant step back and hold up a bloody knife. The woman had been stabbed several times, and she was on the ground. Defendant left the scene, and the witness tried to talk to the woman. She was “gurgling blood from her neck” and could not speak. He tried to tell her he could hear the sirens and help would be there soon. He then looked up and saw that defendant had returned with a baseball bat. Defendant struck the woman on the head with the bat three times in rapid succession, then walked away.

Another witness followed defendant in his car, until the police apprehended him. The victim, who was a homeless woman, died of sharp and blunt force injuries.

ANALYSIS

The Trial Court Properly Imposed Both Weapon Use Enhancements

Defendant argues that the trial court erred in imposing terms for both of the weapon use enhancements. He contends that section 1170.1, subdivision (f), prohibits the imposition of consecutive terms for two deadly weapon enhancements attached to a single offense. We find no error.

Section 1170.1 was enacted as part of the Determinate Sentencing Act, which is commonly referred to as the determinate sentencing law (DSL). (People v. Sasser (2015) 61 Cal.4th 1, 8.) The DSL “ ‘generally governs the calculation and imposition of a determinate sentence when a defendant has been convicted of more than one felony offense.’ ” (Id. at pp. 8-9.) “[B]oth straight life sentences and sentences of some number of years to life are indeterminate sentences not subject to the [DSL].” (People v. Felix (2000) 22 Cal.4th 651, 659 (Felix).)

Section 1170.1 is inapplicable here. Defendant was convicted of one count of murder and two separate weapon use enhancements under section 12022, subdivision (b)(1)—one for the use of the knife and one for the use of the baseball bat. The court sentenced him to an indeterminate term of 25 years to life and consecutive determinate terms of one year each on the two weapon use enhancements. “[S]ection 1170.1 does not apply to a gun-use enhancement attached to an offense which carries an indeterminate term of imprisonment.” (People v. Jackson (1993) 14 Cal.App.4th 1818, 1833; see Felix, supra, 22 Cal.4th at p. 656.)

Defendant specifically claims that section 1170.1, subdivision (f), barred the court from imposing terms for each of the two weapon use allegations under section 12022, subdivision (b)(1). Section 1170.1, subdivision (f), provides that “[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.” Defendant’s claim is meritless. Section 1170.1, subdivision (f), imposes a dual-use restriction whenever multiple enhancements are available for using a firearm or deadly weapon. There is no suggestion that this restriction applies to dual use of the same firearm or weapon use enhancement statute. The plain language of section 1170, subdivision (f), states that when “two or more enhancements may be imposed . . . only the greatest of those enhancements shall be imposed for that offense.” (Italics added.)

For example, in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), a jury found the defendant guilty of three counts of assault with a firearm (§ 245, subd. (a)(2)), and “as to each count made findings under two different sentencing enhancement statutes: (1) that defendant personally used a firearm (§ 12022.5, subd. (a)); and (2) that he committed a ‘violent felony’ to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).” (Id. at p. 505.) The Supreme Court held that the trial court erred in imposing sentence enhancements both for the defendant’s personal firearm use (§ 12022.5, subd. (a)) and for committing a violent felony to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)), because both sentence enhancements relied on the defendant’s firearm use. As such, section 1170.1, subdivision (f), required that only the greatest of the enhancements could be imposed. (Id. at pp. 508-509; see People v. Le (2015) 61 Cal.4th 416, 428 [the defendant “was exposed to two different sentence enhancement provisions, each pertaining to firearm use, which implicates section 1170.1, subdivision (f)’s prohibition against imposing ‘two or more enhancements . . . for being armed with or using . . . a firearm.”].)

Here, unlike Rodriguez, section 1170.1, subdivision (f), was not implicated, since the court did not impose different sentencing enhancements. Rather, it imposed two weapon use enhancements under section 12022, subdivision (b)(1), for the two weapons defendant used.

We conclude that section 1170.1, subdivision (f), did not apply to bar the court from imposing two weapon use enhancements under section 12022, subdivision (b)(1).

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

SLOUGH

J.