Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA035928 Charles A. Chung, Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Alfredo Rene Valenzuela appeals from the judgment entered following a jury trial which resulted in his conviction of first degree murder (Pen. Code, § 187, subd. (a)), during which he personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced Valenzuela to 50 years to life in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
The facts are not in dispute. After telling an acquaintance that he intended to rob the victim, MihranTopouzoglou, on June 1, 2006, Valezuela shot and killed Topouzoglou outside Topouzoglou’s Palmdale home. Valenzuela used a.380 caliber weapon and fired several shots into Topouzoglou’s hand and upper torso. Any one of the bullet wounds in Topouzoglou’s torso would have been fatal.
2. Procedural History.
On April 23, 2008, a jury found Valenzuela guilty of first degree murder in violation of section 187, subdivision (a). The jury further found true the allegation Valenzuela “personally and intentionally discharged a firearm, a handgun, which caused great bodily injury and death to... Topouzoglou within the meaning of... [s]ection 12022.53[, subdivision] (d)....”
At proceedings held on June 6, 2008, the trial court sentenced Valenzuela to a term of 25 years to life in prison for his conviction of first degree murder. For his discharge of a firearm causing great bodily injury and death, the trial court imposed a consecutive term of 25 years to life. In total, the trial court sentenced Valenzuela to 50 years to life in prison.
The trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), a $10,000 suspended parole revocation restitution fine (§ 1202.45), and a $20 court security fee (§ 1465.8, subd. (a)(1)). In addition, the trial court ordered Valenzuela to pay $7,350.15 to the victims’ restitution fund and $1,000 to Topouzoglou’s widow for funeral expenses (§ 1202.4, subd. (f)). Valenzuela was given presentence custody credit for 675 days served. He filed a timely notice of appeal.
CONTENTIONS
Valenzuela contends: (1) he was “prejudiced when the trial court imposed a firearm enhancement of 25 years to life, in violation of... the principles of the Ireland merger doctrine[] and... section 654;” and (2) the “imposition in this case of a firearms enhancement under... section 12022.53, subdivision (d), violated both the prohibition against a sentence for included conduct, and the principles of double jeopardy under the Fifth and Fourteenth Amendments.”
DISCUSSION
1. Imposition of the firearm enhancement did not violate the Ireland merger doctrine or section 654 .
a. The Ireland merger doctrine.
Valenzuela contends the imposition of a 25-year-to-life enhancement pursuant to section 12022.53, subdivision (d) violates the “ ‘merger’ ” doctrine established in People v. Ireland (1969) 70 Cal.2d 522, 538-539 (Ireland). There, the defendant shot and killed his wife. The jury was instructed it could find him guilty of second degree felony murder based on the underlying felony of assault with a deadly weapon. (Id. at p. 538.) On appeal, Ireland argued it had been error to instruct the jury on second degree felony murder because it allowed the jurors to find him guilty of murder without finding he committed the killing with malice aforethought.
Subdivision (d) of section 12022.53 provides in relevant part: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including murder in violation of section 187, subdivision (a)]..., personally and intentionally discharges a firearm and proximately causes great bodily injury... or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
The Ireland court recognized that “[t]he felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of [the] six felonies specifically enumerated in section 189 .... [Citations.] Thus, ‘[a] homicide that is a direct causal result of the commission of a felony inherently dangerous to human life... constitutes at least second degree murder’ [Citation.] Accordingly, the giving of a second degree felony-murder instruction in a murder prosecution has the effect of ‘reliev[ing] the jury of the necessity of finding one of the elements of the crime of murder’ [citation] to wit, malice aforethought.” (Ireland, supra. 70 Cal.2d at p. 538, italics in original.) In Ireland, the felony of assault effectively “ ‘merged’ ” into the homicide. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374.)
In relevant part, section 189 provides that murder committed in “the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, [or] train wrecking,... is murder of the first degree. All other kinds of murders are of the second degree.”
The Ireland court determined “[t]his kind of bootstrapping finds support neither in logic nor in law.” (Ireland, supra, 70 Cal.2d at p. 539.) It therefore held that a second degree felony-murder instruction “may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.” (Ibid., italics in original.) The Ireland court then qualified its holding, stating: “Although we are not at this time prepared to say that the limitation which we have above articulated, when applied to fact situations not now before us, will come to assume the exact outlines and proportions of the so-called ‘merger’ doctrine enunciated in... other jurisdictions, we believe that the reasoning underlying that doctrine is basically sound and should be applied to the extent that it is consistent with the laws and policies of this state.” (Id. at p. 540, fn. omitted.) The merger doctrine has not been applied other than in the context of felony murder and assault. No authority extends the merger doctrine to enhancements such as the one imposed here. “The California Supreme Court has ruled that the merger doctrine applies to ‘certain inherently dangerous felonies,’ and permits them to be used ‘as the predicate felony supporting application of the felony-murder rule’ only when this ‘will not elevate all felonious assaults to murder or otherwise subvert the legislative intent.’ [Citations.] A sentence enhancement[,] [such as the one considered here,] does not fit within this delineation of the merger doctrine.” (People v. Sanders, supra, 111 Cal.App.4th at p. 1374.)
In People v. Sanders, supra, 111 Cal.App.4th at p. 1375, the court recognized that “the ‘bootstrapping’ concern underlying the court’s decision in Ireland, supra, 70 Cal.2d 522, is not present in the case of enhancements.” The court continued, “In Ireland, the court was concerned about eliminating the prosecution’s need to prove malice in homicide cases.” (People v. Sanders, supra, at p. 1375.) But in the present case, as in Sanders, the prosecution’s burden was not reduced as the conduct underlying the firearm enhancement was required to be proven beyond a reasonable doubt. (Ibid.; see People v. Clark (1990) 50 Cal.3d 583, 609, fn. 15 [where the defendant had independent, although concurrent, goals to commit arson and murder, the court rejected the argument that the rule of Ireland should extend to the felony-murder-arson special circumstance].)
The trial court instructed the jury that “[i]t is alleged in Count 1 that the defendant intentionally and personally discharged a firearm and caused death to a person.... [¶] If you find the defendant guilty of the crime thus charged, you must determine whether the defendant intentionally and personally discharged a firearm and caused death to a person in the commission of that felony. [¶]... [¶] The term ‘intentionally and personally discharged a firearm,’ as used in this instruction, means that the defendant himself must have intentionally discharged it. [¶]... [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.”
Here, the section 12022.53, subdivision (d) allegation is not an element of the underlying offense, but a sentencing enhancement. It serves to punish the defendant for the method used to commit the murder, not the murder itself. Finally, the jury was instructed it must find the enhancement true beyond a reasonable doubt. For these reasons, the “merger doctrine” did not preclude the imposition of the section 12022.53, subdivision (d) firearm use enhancement in this case.
b. Section 654.
Valenzuela contends that imposition of the section 12022.53, subdivision (d) enhancement is precluded by the provisions of section 654. He asserts he is being punished twice for the same conduct.
Section 654, subdivision (a) provides in relevant part: “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.”
In People v. Hutchins (2001) 90 Cal.App.4th 1308 (Hutchins), a jury found the defendant guilty of second degree murder and shooting a person from a motor vehicle. The jury also found true the allegation made pursuant to section 12022.53, subdivision (d), that the defendant discharged a firearm, proximately causing the death of the victim. In sentencing the defendant, the trial court imposed an enhancement of 25 years to life in accordance with section 12022.53, subdivision (d). On appeal, the defendant argued “the trial court’s imposition of the additional statutory term was in violation of section 654, because he had already been punished for murder under count 1 ‘for precisely the same act that constituted [the] enhancement.’ ” (Hutchins, at p. 1312.) The Hutchins court simply concluded, “Appellant is wrong.” (Ibid.) Hutchins noted that section 12022.53, subdivision (d) “clearly and unambiguously states that ‘[n]otwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), [including murder], and who in the commission of that felony intentionally and personally discharge[s] a firearm and proximately cause[s] great bodily injury... or death, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison....’ ” (Id. at p. 1313, italics in original.)
In interpreting the language of the statute, the Hutchins court indicated that “[c]learly, in enacting this provision[,] the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislature’s intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties. Nor should section 654 logically apply in such a situation. The manner in which any crime is accomplished may vary in innumerable respects.” (Hutchins, supra, 90 Cal.App.4th at p. 1313, italics omitted.) The court noted that homicide may be committed by such means as stabbing or strangling. However, “[w]hat the Legislature has done by enacting section 12022.53 is not to punish the same single criminal act more than once.... Instead, in determining that a criminal offender may receive additional punishment for any single crime committed with a firearm, the Legislature has chosen to enhance or expand the punishment imposed on a single underlying crime, where committed by use of a firearm, in order to deter a particular form of violence judged especially threatening to the social fabric.” (Hutchins, at pp. 1313-1314, italics added; see People v. Sanders, supra, 111 Cal.App.4th at p. 1375; see also People v. Myers (1997) 59 Cal.App.4th 1523, 1529-1534; People v. Ross (1994) 28 Cal.App.4th 1151, 1157-1159.)
Section 654 does not preclude “imposition of the firearm enhancement under section 12022.53, subdivision (d).” (People v. Sanders, supra, 111 Cal.App.4th at p. 1375.)
In People v. Palacios (2007) 41 Cal.4th 720, 723 (Palacios), the California Supreme Court held that “the sentence enhancement provisions of... section 12022.53 are not limited by the multiple punishment prohibition of... section 654.” In Palacios, although the defendant had committed multiple qualifying offenses, he had fired only “one shot at a single victim.” (Palacios, at p. 727, italics in original.) Referring to the wording of section 12022.53, that it was to apply “[n]otwithstanding any other provision of law,” the court determined that imposition of a section 12022.53 subdivision (d) enhancement with regard to each count was proper. The Palacios court stated: “We are persuaded that, in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. [However,] [i]n light of this conclusion[,] [the court determined it] need not address the People’s argument that section 654 generally does not apply to enhancements” (Palacios, at pp. 727-728.) The court left that question for “another day.” (Id. at p. 728.)
(2) Imposition of a firearm enhancement under section 12022.53, subdivision (d), violated neither the prohibition against a sentence for included conduct nor principles of double jeopardy under the Fifth and Fourteenth Amendments.
In People v. Izaguirre (2007) 42 Cal.4th 126 (Izaguirre), the court recognized that in People v. Sloan (2007) 42 Cal.4th 110, a companion case to Izaguirre, the court held that “enhancement allegations may not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses, also referred to as the multiple conviction rule. [Citation.] The holding in Sloan is consistent with [the Supreme Court’s] recent decision in People v. Reed (2006) 38 Cal.4th 1224 (Reed), which held that the legal elements test, rather than the accusatory pleading test, should be used in determining whether conviction of a charged offense is barred under the rule. Since enhancements are not legal elements of the offenses to which they attach, they are not considered in defining necessarily included offenses under that test.” (Izaguirre, at p. 128.)
In addition, in Izaguirre, the court determined a firearm-related enhancement did not place the defendant in jeopardy for an offense greater than the murder with which he has been charged. The court continued: “The rule of Reed, supra, 38 Cal.4th 1224, barring consideration of enhancements in defining necessarily included charged offenses under the multiple conviction rule does not implicate the double jeopardy clause’s protection against a second prosecution for the same offense after acquittal or conviction. We are not here concerned with a retrial or ‘second prosecution,’ but instead with a unitary trial in which section 954 expressly permits conviction of more than one crime arising out of the same act or course of conduct.... Conduct enhancements cannot be imposed standing alone as additional punishment. By definition, an enhancement is ‘an additional term of imprisonment added to the base term.’ [Citations.]... [¶] To the extent defendant claims enhancements should be considered when applying the multiple conviction rule to charged offenses, our holding in Reed, supra, 38 Cal.4th 1224, controls. They may not.” (Izaguirre, supra, 42 Cal.App.4th at p. 134, italics omitted.)
Section 954 provides in relevant part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court[.]”
In the present case, the jury found the section 12022.53, subdivision (d) enhancement true beyond a reasonable doubt. In view of the court’s decisions in Izaguirre, Sloan and Reed, that finding violated neither the prohibition against a sentence for included conduct nor principles of double jeopardy under the Fifth and Fourteenth Amendments.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. ALDRICH, J.