Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Morris Jones, Judge. Los Angeles County Super. Ct. No. BA326009
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Gabriel Amaya appeals from a judgment entered following a jury trial in which he was convicted in count 2 of second degree robbery of victim Jose Hernandez (Pen. Code, § 211) with the true finding that during the commission of the offense he personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b) and in counts 5 and 6 of dissuading a witness, Edward Mendez and Hernandez respectively, from reporting a crime (Pen. Code, § 136.1, subd. (b)(1)) with the true finding that during the commission of these offenses he personally used a firearm, a handgun, within the meaning of Penal Code section 1203.06, subd. (a)(1) and 12022.5, subdivision (a). He was sentenced to prison for 23 years and contends the trial court violated his rights when it imposed the full term sentence for counts 5 and 6 and the attendant firearm allegations because the prosecution failed to give appellant adequate notice of its intention to request the enhanced sentence under Penal Code section 1170.15. He also contends the trial court committed error and violated his rights when it imposed the full term consecutive sentences on counts 5 and 6 because these sentences required a fact finding which a jury, and not the court must make.
He was found not guilty in count 4 of kidnapping Hernandez for robbery (Pen. Code, § 209, subd. (b)). The jury was unable to reach a verdict in count 1 of second degree robbery of Mendez (Pen. Code, § 211) and in count 3 of second degree robbery of Burgundy White (Pen. Code, § 211) and the court granted the People’s motions to dismiss these counts.
Pursuant to Government Code section 68081, we requested that the parties submit letter briefs addressing two additional issues, the first, what effect did the jury’s inability to reach a verdict on count 1, the robbery of Eduardo Mendez, have on the dissuasion conviction in count 6? Second, did the court err in failing to state reasons for imposing full, consecutive, mid-term sentences for the dissuasion convictions? For reasons stated in the opinion, we affirm the judgment and remand the matter for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
On July 22, 2007, Jose Antonio Hernandez was working with Eduardo Mendez on a lunch truck in the area of Normandie and 60th Street in the County of Los Angeles, when appellant approached. When Hernandez exited the truck to take appellant’s order, appellant pointed a gun at him and ordered him back into the truck. Hernandez entered the truck and appellant followed, closing the door behind him. Once inside, appellant demanded money from Hernandez and Mendez. Hernandez had approximately $50 in his apron and gave it to appellant. Appellant said he wanted more and held the gun to Hernandez’s head. Appellant then demanded money from Mendez, but Mendez did not have any money. Appellant searched Mendez and then searched Hernandez, finding and taking Hernandez’s wallet with identification and approximately $10. Appellant picked up cell phones belonging to Hernandez and Mendez and took the keys to the truck. Appellant said he would return later that evening and that if the men wanted their personal belongings back they would have to give him $300 to $400. As appellant exited the truck, he threatened to return to kill Hernandez and Mendez if they called the police. As appellant walked away from the truck, Burgundy White was nearby talking on a cell phone. Appellant grabbed the phone and pointed his gun at her.
Appellant was subsequently arrested carrying three cell phones. A loaded handgun was found in his car.
DISCUSSION
I
At a probation and sentencing hearing on February 4, 2008, the court sentenced appellant to 23 years in prison. Defense counsel argued Penal Code section 1170.15 by its terms did not deprive the court of discretion to sentence counts 5 and 6 either consecutively or concurrently and that the counts should be sentenced concurrently. In selecting the sentence, the court stated, “In this matter, the court notes that the case did involve great violence, and the defendant really did not display any concern for people involved. As a matter of fact, he pointed the gun at people who were leaving a church, and there’s just a total lack of consideration for the lives of people concerned. Here the court will sentence the defendant as follows: The court will select count 5 as the base term, and count 5 is the 136.1(b)(1) section which carries a term of 16 [months], 2 or 3 [years]. The court will select the mid term of two years. Consecutive thereto the defendant is ordered to serve the full term of four years. That is a total of six years, and as to count 2, the robbery count, the court will select the mid term, and that’s one-third mid term. That is one year plus consecutive thereto the defendant is ordered to serve ten years for the use of the gun, for 11 years, and then as to count 6, the court will sentence – select the mid term of two years consecutive thereto, plus four years for the use of the gun. That is a total of 23 years in the state prison.... The court feels that [Penal Code section] 1170.15 is very explicit in that it indicates that it requires the full mid term and not one-third of the mid term. So the defendant is sentenced to 23 years in the state prison....”
Thereafter, it was determined a sentencing error had been made and on February 22, 2008, the court resentenced appellant, explaining that it would be for the same amount of time, “just rearranging the sentencing.” The court selected count 2 as the principal term and imposed the middle term of three years, plus an additional 10 years for the gun use. On counts 5 and 6 pursuant to Penal Code section 1170.15, appellant received consecutive middle terms of two years, plus consecutive low terms of three years for the gun use for a total of 23 years. The prosecution objected to the sentence in that the court had previously selected the mid term on the gun counts for counts 5 and 6. The court responded it was selecting the low term on the gun use allegation because the court had made the determination that 23 years was appropriate in this case, that appellant had no prior convictions and that the dissuasion crimes were committed during the course of the robbery, that “all of this transpired at the same time.”
Appellant contends the trial court erred when it imposed the full middle term on counts 5 and 6 and the full low term on the gun enhancements because the prosecution failed to give appellant adequate notice of its intention to seek the enhanced sentence. We disagree. Penal Code section 1170.15 is an alternative sentencing scheme and not a sentence enhancement. (People v. Hennessey (1995) 37 Cal.App.4th 1830.)
Since we conclude in section III that the court erred in sentencing appellant in count 6 under the alternative sentencing scheme of Penal Code section 1170.15, the discussion here is limited to the sentence in count 5.
Penal Code section 1170.15 provides in relevant part: “Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony... the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury.”
Penal Code section 136.1, subdivision (b) provides in pertinent part, “... every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer....”
In People v. Hennessey, supra, 37 Cal.App.4th 1830, the court addressed the question of whether Penal Code section 1170.15 created an enhancement which must be pled and proved and concluded it did not. The court stated the statute “does no more than what it says; it creates an alternative sentencing scheme to Penal Code section 1170.1, not an enhancement. Section 1170.15 contains none of the textual earmarks of an enhancement statute. As the California Supreme Court recently noted, ‘[w]hile no magic words need be used to identify an enhancement, we note that many enhancement statutes in fact use the word “enhancement,”... while others refer to imposition of an “additional term.”...’ [Citations.] Section 1170.15 contains neither of these terms. Rather, the Legislature took pains to distinguish section 1170.15 from the general sentencing scheme in stating, ‘Notwithstanding the provisions of subdivision (a) of Section 1170.1....’ [Citations.]” (People v. Hennessey, supra, 37 Cal.App.4th at p. 1834.)
It is a requirement of Penal Code section 136.1 that the defendant dissuade a witness or victim from making any report relative to a crime. Under Penal Code section 1170.15, the sentencing judge need only determine if the defendant was convicted of the target offense, which was a felony. (See People v. Hennessey, supra, at p. 1835.) By the jury’s guilty verdict in count 5, the jury made the necessary finding that appellant attempted to dissuade Hernandez from reporting his robbery, triggering the provisions of Penal Code section 1170.15. The consecutive sentence in Penal Code section 1170.15 was based on the crime for which appellant was convicted and no additional factual finding incidental to another charge was necessary.
Additionally, apart from the fact that Penal Code section 1170.15 is not an enhancement, and contrary to appellant’s claim, its provisions comply with Apprendi v. New Jersey (2000) 530 U.S. 466. The Legislature replaced the standard sentencing method of Penal Code section 1170.1 with the alternative sentencing scheme of Penal Code section 1170.15 where a jury finds a violation of Penal Code section 136.1 and another felony which is attached to the dissuasion.
II
Appellant additionally claims the trial court committed error under Cunningham v. California (2007) 549 U.S. 270 when it imposed consecutive sentences on counts 5 and 6. A trial court’s imposition of consecutive sentences, however, does not violate the provisions of Cunningham. (Oregon v. Ice (2009) 129 S.Ct. 711, 714-715; People v. Black (2007) 41 Cal.4th 799, 821-823.
III
On June 25, 2009, pursuant to Government Code section 68081, we requested that the parties submit letter briefs addressing two issues. The first was, in essence, the effect of the jury’s inability to reach a verdict on count 1, the robbery of Eduardo Mendez, on the dissuasion conviction in count 6. In response, appellant asserts that because the jury was unable to reach a verdict on the robbery of Mendez, the dissuasion count and its attendant gun allegation relate to a robbery for which he was not convicted and Penal Code section 1170.15, does not apply.
Respondent counters that it was for the sentencing judge to determine Penal Code section 1170.15’s applicability since the decision whether to impose individual sentences consecutively or concurrently does not implicate the Sixth Amendment right to jury trial. (Oregon v. Ice, supra, 129 S.Ct. 711, 714-715; People v. Black, supra, 41 Cal.4th 799, 820-823.) Respondent argues the judge needed only to find that the first felony, the robbery of Hernandez, related to the witness dissuasion in count 6 and that the court could have concluded the dissuasion was committed against Mendez as a witness or potential witness to the robbery of Hernandez. Respondent’s argument, in essence, would allow the court to sentence appellant for a crime of which he was not convicted.
Penal Code section 136.1 requires that the defendant dissuade a victim of a crime or a witness from making any report of that victimization to a peace officer. While under Penal Code section 136.1, the dissuasion of Mendez could have been premised on his status as a witness to the robbery of Hernandez, the jury was instructed relative to Count 6, that to find appellant guilty, the People had to prove that Mendez was a crime victim. There was no instruction that a guilty verdict could have been based on Mendez’s status as a witness to a crime. Based on this instruction, the jury could only find appellant guilty of dissuading Mendez if it found that Mendez was the victim of a crime and not merely a witness to a crime
The jury was instructed pursuant to Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 2622 “The defendant is charged in Count 6 with intimidating a witness. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant tried to prevent or discourage Eduardo Mendez from making a report that he was a victim of a crime to any peace officer or state or local law enforcement officer; [¶] 2. Eduardo Mendez was a crime victim [¶] AND [¶] 3. The defendant knew he was trying to prevent or discourage Eduardo Mendez from making a report that he was a victim of a crime to any peace officer or state or local law enforcement officer and intended to do so. [¶] A person is a victim if there is reason to believe that a federal or state crime is being or has been committed or attempted against him or her. [¶] It is not a defense that the defendant was not successful in preventing or discouraging the victim. [¶] It is not a defense that no one was actually physically injured or otherwise intimidated.”
While the jury did not convict appellant of the robbery of Mendez, Mendez was still a victim as defined by CALCRIM No. 2622.
In People v. Evans (2001) 92 Cal.App.4th 664, one of the issues was whether the trial court erred in applying Penal Code section 1170.15 to the sentencing. The court concluded “that, for [Penal Code] section 1170.15 to apply, the dissuasion for which the defendant was convicted must relate to another felony, of which the defendant was also convicted. [The court observed] [t]hat is not the case here. Defendant’s conviction for dissuading a witness was based on his statement to his wife in January 1998, after he choked her, that she ‘better not tell his probation officer...’ of the incident. If defendant had been convicted of a felony for choking his wife, then [Penal Code] section 1170.15 would have applied, because defendant’s dissuasion conviction for attempting to prevent his wife from reporting the choking incident would have been related to another felony of which he was also convicted. The jury, however, acquitted defendant of the felony assault charge in the choking incident and convicted him of only misdemeanor battery. Thus, the dissuasion for which defendant was convicted did not relate to another felony, but to only a misdemeanor, and therefore [Penal Code] section 1170.15 did not apply.” (Id. at p. 670.)
Similarly, in the present case, Penal Code section 1170.15 does not apply to the dissuasion conviction in count 6 or its attendant gun allegation. The basis of appellant’s dissuasion conviction was that Mendez was a crime victim. The dissuasion count directly referenced the robbery charged in count 1, of which appellant was not convicted. Thus, Penal Code section 1170.15 does not apply to the sentence for count 6 in that the dissuasion for which appellant was convicted related to the alleged robbery of Mendez of which appellant was not convicted (People v. Evans, supra, 92 Cal.App.4th at pp. 669-670) and the matter must be remanded for resentencing.
IV
We also asked the parties to discuss whether the trial court erred in failing to state its reasons for imposing consecutive sentences. Respondent asserts that it appears the court did state reasons for imposing consecutive sentences when it first sentenced appellant on February 4, 2008. As we have stated, the court noted that the crime involved great violence, and the defendant did not display any concern for people involved. Instead, he pointed the gun at people who were leaving a church, and there’s just a total lack of consideration for the lives of people concerned. Respondent asserts it is immaterial that the court did not repeat these factors at the re-sentencing hearing held on February 22 “because the court made clear it was merely ‘rearranging the sentencing’ to satisfy the dictates of section 1170.1, and believed that a 23-year sentence – calculated by utilizing consecutive sentencing – was appropriate.” Respondent argues, given the court’s twice-stated intention to impose a 23-year sentence, it is not reasonably probable that the court would impose concurrent terms upon remand. Further, to the extent the statement of reasons was inadequate, appellant should be deemed to have waived such a claim. (People v. Scott (1994) 9 Cal.4th 331, 353.) We agree with respondent.
Pursuant to California Rules of Court, rule 4.425(b), the court may consider “[a]ny circumstances in aggravation or mitigation... in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.” It appears factors stated on February 4 were for the purpose of imposing consecutive sentences. Further, the record demonstrates that prior to the court’s imposition of sentence, defense counsel argued that Penal Code section 1170.15 did not deprive the court of its discretion to sentence the dissuasion counts concurrently and that these counts should be so sentenced. The trial court’s statement that Penal Code section 1170.15 was explicit in that it required the full mid term and not one-third of the mid term does not indicate the court believed consecutive sentences were mandatory. We conclude the court was aware it had discretion to sentence concurrently and stated adequate reasons to impose consecutive sentences.
DISPOSITION
The cause is remanded to the trial court for resentencing and in all other respects the judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.