Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BA293567, Bob S. Bowers, Jr., Judge.
Murray A. Rosenberg, 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, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Delio Xatruch (defendant) of one count of false imprisonment (Pen. Code, § 236, subd. (a) ), one count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), one count of kidnapping to commit another crime (§ 209, subd. (b)(1)), two counts of first degree residential burglary (§ 459), and two counts first degree robbery (§ 211). The jury found true the allegations that defendant personally used a firearm in the commission of the kidnapping and the robberies within the meaning of section 12022.53, subdivision (b). As to the robberies, the jury also found true the allegation that defendant acted in concert and entered a structure as described in section 213, subdivision (a)(1)(A). The jury also found the allegation that defendant personally used a firearm in the commission of first degree burglary within the meaning of section 12022.5, subdivision (a) to be true as to one count and not true as to the other count. The trial court struck the section 12022.53, subdivision (b) sentence enhancements as to the two robbery convictions; imposed a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)(1)), a $20 DNA penalty assessment (Gov. Code, 76104.7), and a $10 crime prevention fine (§ 1202.5, subd. (a)); and sentenced defendant to state prison for life with the possibility of parole plus 17 years, four months.
All statutory citations are to the Penal Code unless otherwise noted.
The jury’s personal use of a firearm under section 12022.5, subdivision (a)(1) appears to be a typographical error as subdivision (a) of section 12022.5 does not have a subpart (1).
On appeal, defendant contends that there is insufficient evidence to support his conviction for kidnapping to commit another crime, the trial court erred in imposing a consecutive full middle term sentence for his conviction for dissuading a witness by force or threat rather than a sentence of one-third of the middle term, the jury’s findings that he personally used a firearm in the commission of certain of the offenses should be reversed because they were inconsistent with the jury’s findings that a principal was not armed in the commission of those same offenses, and his fees and penalties must be modified. We requested the parties to submit supplemental briefs addressing the following issues: whether there was sufficient evidence to support the jury’s finding that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) in the course of one of the robberies; whether the trial court properly struck the section 12022.53, subdivision (b) personal use of a firearm sentence enhancement as to the two robbery convictions pursuant to section 12022.53, subdivision (f); and whether the trial court imposed the proper sentence for defendant’s false imprisonment conviction. We affirm the judgment of conviction and remand this case to the trial court for resentencing in a manner consistent with this opinion.
BACKGROUND
On October 21, 2005, Patricia Ortiz parked her car in front of her apartment building. Defendant and another man approached Ortiz. Defendant showed Ortiz a badge and said that he was a detective and needed to take Ortiz to the station for questioning. Ortiz asked to see an order. The men refused, saying they did not have to show Ortiz anything. The men told Ortiz to get into a van. Ortiz refused. Ortiz was pulled out of her car, handcuffed, and placed in the van.
After Ortiz was inside the van, the men told her that they were not detectives, but instead were “Danny’s” friends. The men told Ortiz that they were there to collect a debt that Ortiz’s husband owed for stolen milk formula. They told Ortiz that they wanted the money her husband had taken from them. Ortiz told the men that her husband was in custody. She told them to wait until her husband was released because she was not involved and did not have any money.
Defendant pulled a gun and threatened to shoot Ortiz in the leg if she did not give him what he asked for. Ortiz told defendant she was pregnant. Defendant said that he did not care. Defendant threatened “to go to [Ortiz’s] son’s school to get him” if she did not “hand over the money.” Ortiz was hit once while she was in the van.
The men asked Ortiz if she was putting together money to get her husband out of jail. Ortiz said that she was not, but that her husband’s family was. Ortiz told the men that her husband’s aunt had the money. The men drove to the aunt’s house. Ortiz told the aunt that she was there to pick up the money. The aunt gave Ortiz $10,000. Ortiz got back into the van and gave the money to defendant.
Ortiz was asked if she had any other money. Ortiz said that she had more money at her “house.” The men drove to Ortiz’s apartment. Ortiz told the men where the money was located and gave one of the men her apartment keys. Defendant entered Ortiz’s apartment.
The men drove around and dropped off Ortiz at the corner of her “house.” When the men dropped off Ortiz, they told her not to call the police. The men said that if Ortiz called the police and they were to “land in jail,” they had people on the “outside” that could do “something” to Ortiz or to her children. When Ortiz returned home, she discovered $5,000 missing from her apartment.
On November 7, 2005, Jose Redondo was working on a car in the backyard of his house. Redondo had left the gate to the yard open about an inch because he was waiting for a helper. As Redondo worked on the car with his back to the gate, someone kicked him in the stomach. Redondo stood up, looked around, and saw defendant and another man. Defendant pointed a handgun to the back of Redondo’s head and the other man pointed a knife at Redondo’s waist.
Redondo was told “This is a robbery.” Defendant told Redondo to go inside the house. Redondo wanted to remain outside because he did not want to upset Orneida Villatoro, the woman with whom he lived, and their baby. Defendant and the other man took hold of Redondo and pulled him. Redondo had to walk about 25 feet. Redondo ultimately did not resist going inside his house because defendant had a handgun.
Once inside the house, defendant and his companion placed Redondo on the floor and tied him up. The men took Redondo’s wallet from his pocket and took $300 or $400 from the wallet. The men told Redondo to bring them whatever money he had. One man said he was there to kill Redondo. Redondo began to cry. Redondo’s son started to shout. “They” then said to Villatoro, “Lady, take that little boy and go over there unless you want me to shoot him.” Defendant asked Villatoro where she and Redondo kept their money. Villatoro testified that defendant had a gun that he kept inside his pants. Villatoro only saw the gun’s grip. Villatoro testified that she was afraid.
Defendant and his companion searched the house. When they did not find any money, they called a third man. Thereafter, a man in a black mask entered the house. That man and defendant searched the house. Redondo told the men that if they did not harm his wife or baby, he would give them $2,000 he had in the bank. Defendant told Redondo “You better give me that money.” Defendant apparently gave Redondo until 1:00 p.m. that day to give him the money.
Defendant and his companions left when they heard someone outside calling Redondo’s name. The men took two stereos, a cell phone, some rings, and other, unidentified property. The men told Villatoro not to untie Redondo until they were gone.
Redondo reported the incident to the police as soon as the men left. Two to three days later, the men who robbed Redondo contacted him again. Redondo found a note on his gate that “basically” said “Friend, I expect that you didn’t forget the deal that we made regarding the $2,000 you were going to pay us. Put your cell phone number, attach your cell phone number to the truck window so I can call you and give you instructions. For your own good, for your own good, don’t call anybody. And you have five minutes for the number of telephone. Your wife looks good driving that Land Cruiser. Okay. You have five minutes to leave the phone number. Otherwise your family is running danger. And your wife looks good driving that Land Cruiser.” Redondo gave the note to the police.
Redondo wrote down his telephone number and left it on a tow truck. Redondo received a telephone call from a man who identified himself as the person who robbed Redondo. The man said he needed the $2,000. Redondo said he needed time to get the money. The man gave Redondo until the next day.
Redondo went to the police station. Los Angeles Police Department Detective James Martin had a listening device installed on Redondo’s telephone. Detective Martin listened in on a telephone call instructing Redondo where to “drop” the money. Detective Martin devised a plan for the money drop, in connection with which defendant and, apparently, two other suspects were taken into custody.
DISCUSSION
I. Sufficient Evidence Supports Defendant’s Conviction For Kidnapping Redondo To Commit Another Crime
Defendant contends that his conviction for kidnapping Redondo to commit another crime is not supported by sufficient evidence. Defendant contends that the movement of Redondo 25 feet from his own backyard into his house was incidental to the robbery, did not increase the risk of harm to Redondo, and thus was insufficient movement to support his conviction. We disagree.
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.)
Section 209, subdivision (b) provides,
“(b)(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole.
“(2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.”
The jury was instructed with CALJIC No. 9.54 which provides, in part, that “Kidnapping is the unlawful movement by physical force of a person without that person’s consent for a substantial distance where the movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself.” The jury was instructed that the People had to prove, in part, that “The movement of the person was for a substantial distance, that is, a distance more than slight, brief or trivial.” (CALJIC No. 9.54.)
“As stated in People v. Rayford (1994) 9 Cal.4th 1, 12 [36 Cal.Rptr.2d 317, 884 P.2d 1369], ‘Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself. (People v. Daniels (1969) 71 Cal.2d 1119, 1139 . . .; In re Earley (1975) 14 Cal.3d 122, 127-128 . . . .) These two aspects are not mutually exclusive, but interrelated. [¶] As for the first prong, or whether the movement is merely incidental to the crime of robbery, the jury considers the “scope and nature” of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. [Citation.]’” (People v. Jones (1999) 75 Cal.App.4th 616, 628-629, fn. omitted.)
“‘The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. (In re Earley, supra, 14 Cal.3d at p. 131; People v. Lara (1974) 12 Cal.3d 903, 908, & fn. 4 . . . .) This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. (See, e.g., People v. Lara, supra, 12 Cal.3d at p. 908 & fn. 4 [examples of such risk of harm “include not only desperate attempts by the victim to extricate himself but also unforeseen intervention by third parties”]; In re Earley, supra, 14 Cal.3d at p. 132 [“asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by (defendant)”]; cf. People v. Caudillo (1978) 21 Cal.3d 562, 574 . . . [aggravated kidnapping includes review of such factors as “the defendant’s motivation to escape detection” and “the possible enhancement of danger to the victim resulting from the movement”].) The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. (In re Earley, supra, 14 Cal.3d at p. 132; People v. Lara, supra, 12 Cal.3d at p. 908.)’ (People v. Rayford, supra, 9 Cal.4th at pp. 13-14; see also People v. Martinez [(1999)] 20 Cal.4th [225,] 233.)” (People v. Jones, supra, 75 Cal.App.4th at p. 629.)
Defendant argues that the distance Redondo was moved – 25 feet – is “short by kidnapping standards” and lasted only a short time while Redondo was moved from his fence-in yard into his house. Defendant also contends that the movement did not increase the risk of harm to Redondo over that risk inherent in a robbery. Defendant further contends that Redondo was “already out of view from the general public” in the fenced-in area of his yard when he was first accosted, and any crime that could have been committed in the house could have been committed in the yard. Once in the house, defendant contends, Redondo was bound immediately thus preventing him from further endangering himself by attempting to escape.
When a jury determines whether movement was merely incidental to a robbery, it considers the “‘scope and nature’ of the movement.” (People v. Jones, supra, 75 Cal.App.4th at pp. 629-630.) The scope and nature of the movement includes the actual distance the victim is moved, but there is no minimum number of feet a victim must be moved to establish the first prong. (Id. at p. 630.) Considering the nature and scope of the movement, the movement of Redondo into his house was not incidental to the robbery. Redondo initially resisted being taken into his house and, at least at first, defendant and his companion had to take hold of Redondo and pull him toward the house. Redondo did not resist further because defendant was armed with a handgun. A physical struggle, however brief, between an unarmed victim and two men armed with a handgun that results in the victim being moved indoors is substantial movement even if the total physical movement is only 25 feet.
The movement of Redondo inside the house increased the risk to Redondo by decreasing the likelihood that defendant and his companions would be discovered. (People v. Jones, supra, 75 Cal.App.4th at p. 629.) Although Redondo’s yard may have been fenced, when Redondo was outside his neighbors or passersby might have overheard the robbery or Redondo could have alerted such persons to the robbery by shouting. Persons coming to the house also might have seen any robbery taking place in Redondo’s yard. Redondo’s movement into the house also enhanced the opportunity for defendant and the others to commit additional crimes. (Ibid.) Once Redondo was inside his house, the defendant and his companion tied him up making Redondo more vulnerable to attack than if he had remained unbound, or even bound, outside.
The movement of Redondo from his yard into his house was not merely incidental to the robbery and substantially increased the risk of harm to Redondo over that necessarily present in a robbery. Thus, there was sufficient evidence to support a conviction for kidnapping to commit another crime in violation of section 209, subdivision (b)(1).
II. Defendant’s Sentence For Dissuading A Witness By Force Or Threat
In his opening brief, defendant argues that the trial court erred in imposing a consecutive full middle term sentence for his conviction for dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) rather than a sentence of one-third of the middle term as provided for by section 1170.1, subdivision (a). In its respondent’s brief, respondent correctly points out that section 1170.15 provides for a full middle term sentence for defendant’s violation of section 136.1, subdivision (c)(1) under the circumstances of this case. Defendant concedes this argument in his reply brief.
III. The Jury’s Findings As to Defendant’s Personal Use Of A Firearm Were Proper
Defendant contends that the sentence enhancements for personally using a firearm must be reversed because the jury’s findings that defendant personally used a firearm in the commission of the two robberies (§12022.53, subd. (b)), the kidnapping to commit another crime (§ 12022.53, subd. (b)), and the burglary of Redondo’s house (§ 12022.5, subd. (a)) are inconsistent with its findings that a principal was not armed with a firearm (§ 12022, subd. (a)(1)) in the commission of those offenses. The jury’s findings were proper.
Section 954 provides, in pertinent part, “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” Under section 954, a jury properly may return inconsistent verdicts on separate counts. (People v. York (1992) 11 Cal.App.4th 1506, 1510; People v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657.) In People v. York, the court of appeal considered whether section 954 permitted inconsistent verdicts on a charged offense or count and an accompanying enhancement. Holding that section 954 permitted such inconsistent verdicts, the court of appeal stated, “[t]he ‘special finding’ on which the jury returned its ‘not true’ finding was a special circumstance, or enhancement, attached to the murder count. Although section 954’s literal application is limited to separate counts, the underlying policy is equally applicable to enhancements. (People v. Lopez (1982) 131 Cal.App.3d 565, 570-571 [182 Cal.Rptr. 563]; People v. Brown (1985) 174 Cal.App.3d 762, 768-769 [220 Cal.Rptr. 264]; see People v. Allison (1989) 48 Cal.3d 879, 897 fn. 10 [258 Cal.Rptr. 208, 771 P.2d 1294].)” (People v. York, supra, 11 Cal.App.4th at p. 1510.)
Defendant appears to argue that the relevant part of section 954 applies to inconsistencies between counts on charged offenses and to inconsistencies between charged offenses and accompanying enhancements, but not to inconsistencies between multiple enhancements that accompany the same charged offense. Defendant offers no reason why section 954 should be so limited, and we do not perceive any such reason. (See People v. Lopez, supra, 131 Cal.App.3d at p. 571 [“The concept of jury largesse is not governed by the legislative choice of language. The fact that the word ‘enhancement’ is used rather than ‘offense’ does not nullify the underlying rationale of refusing to invalidate an inconsistent jury verdict if it is otherwise supported by substantial evidence”].)
Defendant does not contend that the jury’s true findings on the personal use of a firearm enhancements as to the two robberies, the kidnapping to commit another crime, and the burglary of Redondo’s house are not supported by substantial evidence. Accordingly, the jury’s findings were proper. (See § 954; People v. York, supra, 11 Cal.App.4th at p. 1510; People v. Pahl, supra, 226 Cal.App.3d at pp. 1656-1657.)
IV. Sufficient Evidence Supports The Jury’s Finding That Defendant Personally Used A Firearm In The Course Of Robbing Villatoro
Villatoro testified that she saw defendant’s handgun in his pants and that she was only able to see the handgun’s grip. In light of that testimony, we requested the parties to submit supplemental briefs addressing whether sufficient evidence supports the jury’s finding that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) in the course of robbing Villatoro. We conclude that sufficient evidence supports the jury’s finding.
In reviewing the sufficiency of the evidence supporting a sentence enhancement, we apply the same standard we apply to reviewing the sufficiency of the evidence supporting a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) As discussed above, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the elements of the charge beyond a reasonable doubt. (People v. Young, supra, 34 Cal.4th at p. 1175.) Section 12022.53, subdivisions (a)(4) and (b) provide that any person who personally uses a firearm in the commission of a robbery shall be punished by an additional and consecutive term 10 year state prison term.
“‘A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements.’ [Citation.] The enhancement is not limited ‘to situations where the gun is pointed at the victim . . . .’ [Citation.] Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime. [Citations.]” (People v. Carrasco, supra, 137 Cal.App.4th at p. 1059; People v. Palacios (2007) 41 Cal.4th 720, 725, fn. 3 [“Simple firearm use may include the threatening display of a gun . . . ”].) “The evidence is sufficient to prove the use of a firearm where there is some type of display of the weapon, coupled with a threat to use it which produces fear of harm in the victim. ‘. . . [A] firearm is displayed when, by sensory perception, the victim is made aware of its presence. Once displayed in such fashion, the threat of use sufficient to produce fear of harm becomes a use of that firearm proscribed by Penal Code sections 12022.5 . . . .’ [Citation.] There is no requirement the victim actually see the gun. [Citation.]” (People v. Dominguez (1995) 38 Cal.App.4th 410, 421.)
Defendant did not overtly display the gun in a menacing or threatening manner. But, defendant displayed the gun and threatened to shoot Villatoro. Defendant carried the gun in his pants in a manner that permitted Villatoro to see it – effectively, displaying the gun. Redondo testified that when his and Villatoro’s son began to shout as Redondo was crying, defendant threatened to shoot Villatoro’s son if Villatoro did not take her son to another part of the house. Redondo testified that “they” said to Villatoro, “lady, take that little boy and go over there unless you want me to shoot him.” Although Redondo used the word “they” to describe the person who uttered the threat, defendant was the only person identified as carrying a gun. Villatoro testified that she was afraid. Because the evidence showed that defendant displayed a gun to Villatoro and threatened to shoot Villatoro to control Villatoro’s actions during the course of robbing her, sufficient evidence supported the personal use of a firearm sentence enhancement under section 12022.53, subdivision (b). (People v. Carrasco, supra, 137 Cal.App.4th at p. 1058.)
V. The Trial Court Improperly Struck The Personal Use Of A Firearm Sentence Enhancements As To Defendant’s Two Robbery Convictions
The trial court struck the section the section 12022.53, subdivision (b) personal use of a firearm sentence enhancement as to defendant’s robbery convictions in counts nine and 10 purportedly pursuant to section 12022.53, subdivision (f). We asked the parties to submit supplemental briefs addressing whether the trial court properly struck these sentence enhancements. Respondent argues that the trial court erred in striking the section 12022.53, subdivision (b) sentence enhancement as to counts nine and 10. Defendant agrees as to count 10, but disagrees as to count nine, arguing, as discussed post, that because the robbery in count nine was included within the kidnapping for robbery conviction, only one section 12022.53, subdivision (b) sentence enhancement was proper for those two convictions.
Section 12022.53, subdivision (b) provides, in relevant part, “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.” The only limitation on the rule that a person who uses a firearm in the commission of a felony enumerated in subdivision (a) of section 12022.53 shall be punished by an additional, consecutive term, is found in subdivision (f) of section 12022.53. (People v. Palacios, supra, 41 Cal.4th at p. 726 [“the sentence enhancement provisions of Penal Code section 12022.53 are not limited by the multiple punishment prohibition of Penal Code section 654”].) Section 12022.53, subdivision (f) provides, in relevant part, “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” Subdivision (h) of section 12022.53 provides “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
The felonies at issue here – two robberies – are specified in subdivision (a)(4) of section 12022.53.
The jury found defendant guilty of robbery in counts nine and 10, and found true the allegations that he personally used a firearm in the commission of those offenses within the meaning of section 12022.53, subdivision (b). Defendant argues that the trial court properly struck the section 12022.53 sentence enhancement as to count nine “because the count IX crime of first degree robbery was included within the kidnapping to commit another crime, count VIII, violation with its personal use of a firearm, section 12022.53(b), true finding and therefore the section 12022.53(b) true finding as to count IX would amount to two section 12022.53(b) findings as to one crime and must be stricken (Pen. Code secs. 209(b)(1), 211 and 12022.53(f); See Pen. Code sec. 1170.1(f)).” Although unclear, defendant appears to argue that the trial court properly struck the sentence enhancement as to count nine because robbery is a lesser included offense of kidnapping for robbery. The California Supreme Court has rejected this argument. (People v. Lewis (2008) 43 Cal.4th 415, 518-519, & fn 29 [“We conclude, however, that robbery is not a lesser included offense of kidnapping for robbery”].) Accordingly, the trial court erred in striking the section 12022.53, subdivision (b) sentence enhancements as to counts nine and 10 pursuant to section 12022.53, subdivision (f). (§ 12022.53, subds. (b), (f), & (h).)
VI. Defendant’s Sentence For His False Imprisonment Conviction
The jury found defendant guilty of false imprisonment, a felony. The trial court imposed a subordinate consecutive four month sentence to be served in any penal institution for the conviction. We requested the parties to submit supplemental briefs addressing whether the trial court properly imposed a consecutive four month sentence rather than a consecutive eight month sentence. The parties agree that the trial court should have imposed a consecutive eight month sentence.
Pursuant to section 237, subdivision (a) and section 18 , the middle term for a violation of section 236 is two years. Pursuant to section 1170.1, subdivision (a), the sentence for a consecutive subordinate term is one-third of the middle term for the offense. One-third of the middle term of two years is eight months.
Section 237, subdivision (a) provides, “False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.”
Section 18 provides, “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.”
VII. Defendant’s Fees, Penalties, and Surcharges
The trial court imposed a $200 restitution fine (§ 1202.4), a suspended $200 parole revocation restitution fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)(1)), a $20 DNA penalty (Gov. Code, § 76104.7), and a $10 crime prevention fine (§ 1202.5, subd. (a)). We requested the parties to address the effect of People v. Chavez (2007) 150 Cal.App.4th 1288 on this case. Subsequent to our request, the Legislature passed Senate Bill No. 425 (2007-2008 Reg. Sess.) chapter 302 which abrogated People v. Chavez. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1256-1257.)
A. Court Security Fees
Respondent contends that the trial court erred in imposing a single $20 court security fee pursuant to section 1465.8, subdivision (a)(1). We agree.
Section 1465.8, subdivision (a)(1) provides, “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.” Section 1465.8 imposes a $20 fee for each conviction a defendant suffers, and does not impose a single $20 fee in each case. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)
Defendant suffered convictions for seven criminal offenses – one count of false imprisonment, one count of dissuading a witness by force or threat, one count of kidnapping to commit another crime, two counts of first degree residential burglary, and two counts first degree robbery. Accordingly, the trial court should have imposed court security fees of $140. (§ 1465.8, subd. (a)(1).)
B. State Court Construction Penalty
Respondent contends that the trial court should have imposed a state court construction penalty in the amount of $51 pursuant to Government Code section 70372, subdivision (a)(1). We agree.
Government Code section 70372, subdivision (a)(1) provides, “Except as otherwise provided in subdivision (b) of Section 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including, but not limited to, all offenses involving a violation of a section of the Fish and Game Code, the Health and Safety Code, or the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000.”
The state court construction penalty does not apply to “(A) Any restitution fine. [¶] (B) Any penalty authorized by Section 1464 of the Penal Code or Chapter 12 (commencing with Section 76000) of Title 8. [¶] (C) Any parking offense subject to Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of the Vehicle Code. [¶] (D) The state surcharge authorized by Section 1465.7 of the Penal Code.” In Los Angeles County, the state construction fee is calculated as $3 for every $10 in fines. (People v. McCoy, supra, 156 Cal.App.4th at pp. 1252-1254; Gov. Code, §§ 70372, subd. (a)(2) & 70375, subd. (b).)
The trial court did not impose a state court construction penalty in this case. It should have imposed a penalty of $51, calculated as follows: $42 for the $140 in court security fees (§ 1465.8, subd. (a)(1)), $6 for the $20 DNA penalty assessment (Gov. Code, 76104.7), and $3 for the $10 crime prevention fine (§ 1202.5, subd. (a)).) (Gov. Code, §§ 70372, subd. (a)(1) & 70375, subd. (b); People v. McCoy, supra, 156 Cal.App.4th at pp. 1252-1254.)
C. State Penalty and Surcharges Pursuant to Sections 1464 and 1465.7
Respondent contends that the trial court should have imposed a section 1464 state penalty of $140 and a section 1465.7 surcharge of $28 on the $140 in court security fees the trial court should have imposed. We agree.
Section 1464, subdivision (a) provides, “Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and except as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
The state penalty does not apply to “(A) Any restitution fine. [¶] (B) Any penalty authorized by Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code. [¶] (C) Any parking offense subject to Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of the Vehicle Code. [¶] (D) The state surcharge authorized by Section 1465.7.”
As discussed above, the trial court should have imposed court security fees of $140 (§ 1465.8, subd. (a)(1)). Accordingly, the trial court should have imposed an additional penalty of $140 pursuant to section 1464, subdivision (a) based on the court security fees.
Section 1465.7, subdivision (a) provides, “A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.” The base fine used to calculate the state penalty assessment was the $140 in court security fees (§ 1465.8, subd. (a)(1)). Twenty percent of the $140 in court security fees is $28. (§ 1465.7, subd. (a).)
DISPOSITION
The judgment of conviction is affirmed. The case is remanded for resentencing in a manner consistent with this opinion.
We concur: TURNER, P. J., ARMSTRONG, J.