Opinion
C088193
12-04-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEXIS CASTANEDA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE023607)
Defendant Alexis Castaneda pleaded no contest to a September 23, 2017, armed robbery and went to trial on a September 24, 2017, armed robbery and carjacking. A jury found him guilty of the September 24 charges and found true two sentence enhancement allegations for personal use of a firearm, one attached to the robbery and the other to the carjacking. On appeal, defendant contends the trial court abused its discretion in declining to strike the enhancements and in failing to apply Penal Code section 654 thereto. Disagreeing, we affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The facts of defendant's September 23, 2017, crimes (robbery and illegal possession of a firearm, resulting in two counts and an enhancement to which he pleaded no contest) are not relevant to our analysis of defendant's claims on appeal, so we decline to discuss them here.
On September 24, 2017, moments after victim X.D.C. and his father Y.C. arrived home in the son's car, four men approached the car. One man struck the driver's side window with a gun, pulled the father out of the driver's seat, and demanded his money and wallet while striking him with the gun. The son, who was in the front passenger's seat, got out of the car and defendant, standing two or three meters away to the side of the car, pointed a gun at him and said, "Stop, don't move." The son stood for a few seconds and then yelled for help and ran away.
The four men drove away in the son's car, which contained property belonging to both father and son.
A jury found defendant guilty of carjacking (count one), second degree robbery (count two), and unlawful possession of a firearm (count three). (§§ 215, subd. (a), 211, 29820.) In connection with counts one and two, the jury found true the allegation that defendant personally used a firearm in the commission of the felonies. (§ 12053, subd. (b).)
The second amended complaint, which was deemed the Information, identifies Y.C. as the carjacking victim, and X.D.C. as the robbery victim. The jury verdicts do not identify the victims.
Defendant was sentenced on all five counts of conviction, from both the September 23 and September 24 crimes, on October 12, 2018. In his sentencing brief, he asked the trial court to consider dismissing the firearm use enhancements in the interests of justice and for concurrent sentencing and application of section 654 on any eligible counts of conviction, including the gun possession charges.
The trial court found (with no analysis) that section 654 did not "appl[y] on the matters urged." The court then discussed defendant's youth, efforts to be a good father, and letters of support, but noted several aggravating factors, including the sophisticated nature of the crimes and that defendant was on juvenile probation when he committed them.
Specifically responding to the request to dismiss the firearm enhancements, the trial court explained: "Even though the court now has discretion to not impose that, what the legislature plainly intended and what makes considerable sense in the overall landscape of evaluating offenses is that when a gun is used in the fashion that [it] was used in this [case], the [section] 12022.53(b) enhancement should be imposed. So I am imposing that."
The trial court sentenced defendant to a total term of 20 years eight months in prison, including 10 years for the firearm enhancement to the carjacking offense, and a consecutive sentence of three years four months (one-third of 10 years) for the firearm enhancement to the September 24 robbery.
DISCUSSION
On appeal, defendant argues the trial court abused its discretion in focusing solely on defendant's use of the gun in declining to strike the section 12022.53, subdivision (b) enhancements to the September 24 carjacking and robbery counts. He contends in the alternative that the trial court erred in failing to apply section 654 to the two firearm enhancements, arguing the court instead "impos[ed] consecutive terms for use of the same firearm against the same victim."
Although defendant's briefing argues error in declining to strike the "enhancement," using the singular, he later suggests the enhancements on both the carjacking and (September 24) robbery counts should have been stricken.
I
Striking the Firearm Enhancements
Defendant contends the trial court "used the wrong standard" when it exercised its discretion not to strike the firearm enhancements. Defendant argues that the court's explanation for declining to strike one or both enhancements suggested that the court believed that it was required to impose the enhancements merely because defendant pointed a gun at his victim. We disagree.
"Senate Bill No. 620 (2017-2018 Reg. Sess.), which added section 12022.53, subdivision (h), gave the trial court discretion 'in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section.' (§ 12022.53, subd. (h).)" " ' "[A] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is" reviewable for abuse of discretion.' (People v. Carmony (2004) 33 Cal.4th 367, 373.)" (People v. Pearson (2019) 38 Cal.App.5th 112, 116 (Pearson).)
" ' " '[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " ' " (Pearson, supra, 38 Cal.App.5th at p. 116.)
Defendant has not carried his burden here. The record reflects that the trial court, aware of its discretion, considered defendant's unique situation before declining to strike the enhancements. The court's consideration of "the fashion that [the gun] was used" was not improper, as pointing a firearm at a victim during a carjacking and robbery reasonably may be viewed as an aggravating circumstance, in contrast to simply passively holding or displaying the firearm. (See People v. Steele (2000) 83 Cal.App.4th 212, 218 ["Even though most assaults with a firearm undoubtedly include conduct fitting into the definition of brandishing, it has long been held that brandishing is a lesser related offense"]; Cal. Rules of Court, rule 4.428(b) ["the court may consider the effect that striking the enhancement would have on . . . the accurate reflection of the defendant's criminal conduct on his or her record"].)
Further rule references are to the California Rules of Court.
The trial court also properly considered the relative sophistication of the carjacking and the fact that defendant was on juvenile probation at the time. (See Pearson, supra, 38 Cal.App.5th at p. 117 ["The factors that the trial court must consider when determining whether to strike a firearm enhancement under section 12022.53, subdivision (h) are the same factors the trial court must consider when handing down a sentence in the first instance"]; rule 4.421(a)(8) [sophistication of manner in which crime carried out may be aggravating circumstance]; rule 4.421(b)(4) [that defendant was on probation may be aggravating circumstance].) And while the court's characterization of the legislative intent behind Senate Bill No. 620 may be at odds with the way some proponents of the legislation viewed it, defendant has not demonstrated that the court abused its broad discretion in declining to strike one or both enhancements.
The views of the bill's sponsor, which defendant provides in his briefing, may be germane to an analysis of legislative history. (See Larkin v. Workers' Comp. Appeals Bd. (2015) 62 Cal.4th 152, 164, fn. 10.) But the legislative history is immaterial to the question before us.
II
Section 654Defendant admits that there were multiple victims involved in this case, observing that "the evidence showed that [defendant's] actions against [the son] aided and abetted the theft of the car from [the father]." But he argues that his use of the gun "did not involve multiple victims," as "all the evidence showed that [defendant] used and displayed a gun against only one person."
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
But section 654's prohibition " 'do[es] not apply to crimes of violence against multiple victims.' " (People v. Oates (2004) 32 Cal.4th 1048, 1063.) Nor does section 654 "preclude imposition of multiple enhancements for a single firearm use involving multiple victims." (Id. at p. 1065.)
On closer inspection, defendant's argument for application of section 654 is revealed as an undeveloped and mislabeled challenge to the sufficiency of the evidence supporting the charging and imposition of multiple firearm enhancements for defendant's conduct, rather than the failure to stay one of the enhancements at sentencing. Therefore, the argument is forfeited. (See Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226 fn. 10; rule 8.204(a)(1).) Further, on its merits, the argument fails to persuade because there is substantial evidence that defendant personally used a firearm against both victims.
First, it is entirely plausible that the jury found that the father saw defendant pointing the gun at his son, as the father was outside of the car and actively resisting another robber when defendant pointed the gun at the son. (See People v. Hudson (2016) 244 Cal.App.4th 1318, 1324 ["a fundamental principle of appellate review of the sufficiency of the evidence [is] that resolution of equally plausible conflicting inferences from undisputed evidence is for the trier of fact, not the Court of Appeal"].)
Defendant's observation that the verdicts "did not include named victims," and his contention that this silence supports the argument that there was only one victim of his gun use, is unavailing. (See People v. Camacho (2009) 171 Cal.App.4th 1269, 1272 [ruling that "the record as a whole" illuminates the jury's intent to convict of a specified offense, even if the form of a verdict is not entirely consistent with such intent]; People v. Davis (1996) 50 Cal.App.4th 168, 172 ["a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record"].)
Further, our reasoning in People v. Thiessen (2012) 202 Cal.App.4th 1397 (Thiessen) explains that the evidence supports a finding that defendant was using the gun on the son to support his confederate while the confederate robbed and beat the father.
In Thiessen, during a drive-by shooting, defendant pointed an inoperable shotgun through the same window that a codefendant used to fire a rifle and pulled the trigger to make a "click" noise, so his codefendant would hear that defendant was trying to discharge the shotgun. (Thiessen, supra, 202 Cal.App.4th at p. 1404.) This court held that "[e]ven if the shotgun were inoperable and unseen by anyone else, as Thiessen claimed, by pointing it alongside [his codefendant] as [his codefendant] aimed a rifle at the intended victim, and pulling the trigger to make a 'click' noise, Thiessen emboldened [his codefendant] to shoot. He therefore used the firearm to facilitate the commission of the crimes." (Ibid.)
We recognized that while "some cases have stated or assumed that a weapon cannot 'menace' a person who is unaware of its existence," "more recent authority" rejected the notion that "a victim must perceive a firearm in order for it to support a use enhancement." (Thiessen, supra, 202 Cal.App.4th at pp. 1404-1405.) We explained that when a defendant uses a firearm to "show[ ] his solidarity with" accomplices, he is "facilitat[ing] the crime" and "actually produc[ing] harm," which "use" satisfies "both the terms and purpose" of the firearm enhancement statute. (Id. at p. 1405.)
Here, by pointing his firearm at the son and directing him to stay at the scene of the ongoing crimes, defendant helped his confederate, who was actively participating in the crimes against the father. Defendant's threatening use of the gun and accompanying instructions, intended to ensure that the son did not leave the scene of the ongoing crimes, facilitated the violent crimes against both victims. Accordingly, to the extent any claim of error is preserved, we conclude that the trial court's failure to apply section 654 to stay the second gun enhancement was not error.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P.J. /s/_________
Krause, J.