Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. 194844, 193339
McGuiness, P.J.
George Yates (appellant) appeals from a judgment entered after a jury convicted him of premeditated attempted murder (Pen. Code, §§ 664, 187 ), assault with a firearm (§ 245, subd. (b)), two counts of possession of a firearm by a felon on two different dates (§ 12021, subd. (a)(1)), carrying a concealed firearm by a felon (§ 12025, subd. (a)(2)), and carrying a loaded firearm in a public place by a felon (§ 12031, subd. (a)(1)). He contends the trial court erred in: (1) denying his request for disclosure of the name of an informant; (2) imposing a term of fifteen years to life on count one; and (3) imposing a two year term on count three. The People contend the trial court erred in imposing a concurrent term for a prior prison term enhancement. We agree, as the People concede, that appellant’s second contention has merit. We also agree with the People’s contention and reject appellant’s remaining two contentions. We shall therefore remand the matter for a redetermination on the prison prior enhancement and order amendment of the abstract of judgment to reflect a correct term of imprisonment on the prison prior enhancement and the sentence on count one.
All statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
A consolidated information was filed on January 8, 2007, charging appellant with premeditated attempted murder (§§ 664 subd. (a), 187, 1192.7, subd. (c), count one), assault with a firearm (§ 245, subd. (b), count two), two counts of possession of a firearm by a felon on two different dates (§ 12021, subd. (a)(1), counts three and four), carrying a concealed firearm by a felon (§ 12025, subd. (a)(2), count five), and carrying a loaded firearm in a public place by a felon (§ 12031, subd. (a)(1), count six). As to counts one and two, the information alleged appellant personally used a firearm (§ 12022.5, subd. (a)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to count one, the information alleged appellant personally and intentionally discharged a firearm, proximately causing great bodily injury (§ 12022.53, subd. (d)). The information further alleged that appellant had served a prior prison term (§ 667.5, subd. (b)).
Opening statements were given and witness testimony began in appellant’s jury trial on January 11, 2007. The victim, Darius Sims, testified that in the early morning of June 12, 2004, he was on his way to work when he stopped by a housing project in San Francisco to talk to Wesley Bookman, Ron Richardson and appellant, all of whom he had known for many years. The four men had a friendly conversation. At some point, Bookman left the group. Richardson then left to get some food for himself and Sims, leaving Sims alone with appellant. After Richardson had been away for about half an hour, Sims became impatient waiting for the food and turned away from appellant to see if Richardson was coming back. When Sims turned back toward appellant, appellant was holding a gun to Sims’s face. Appellant said, “die, snitch,” as he fired multiple shots into Sims’s body.
While Sims was hospitalized and unable to speak, his mother asked him who had shot him and told him to squeeze her hand when she mentioned the correct person. She asked about several people, and when she mentioned appellant’s name, Sims squeezed her hand. When police inspector Carl Bonner showed Sims a series of photographs and asked who had shot him, Sims pointed to appellant’s picture. Sims testified at trial that he had no doubt it was appellant who had shot him.
Police officer Stephen Jonas testified that he and other officers went to a housing project on June 28, 2004, to arrest appellant. As he entered the area, he saw appellant with three other men. Appellant looked at Jonas and walked away at a fast pace. Jonas lost sight of appellant but heard what sounded like metal sliding across concrete, and then a “thump.” Jonas eventually caught up with appellant and arrested him. Based on his belief that the sound he heard was of a gun being thrown into a garbage chute, Jonas walked over to a trash can at the bottom of a garbage chute and found a handgun “sticking up out of the trash.” The DNA on the gun was compared to a DNA sample taken from appellant. Appellant could not be excluded as one of at least two other contributors to the DNA on the gun.
The People submitted into evidence a bullet that was taken from Sims’s face and two bullets that were retrieved from the scene of the shooting. A criminalist concluded that one of the bullets found at the scene was fired from the gun the police retrieved when they arrested appellant. The criminalist testified that the bullet taken from Sims’s face and the second bullet found at the scene could have been fired from the same gun.
Police officer Troy Carrasco testified that Sims was not registered as a confidential informant and had never given him any information about appellant, but had once given him information about another shooting. Carrasco knew Sims had a reputation in his community for being a snitch because several people, including appellant, had told him they believed Sims was a snitch.
Appellant’s girlfriend testified that appellant was with her at the time of the shooting.
The jury found appellant guilty as charged on all counts and found true the enhancement allegations as to counts one and two that appellant personally used a firearm (§ 12022.5, subd. (a)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). It also found true the enhancement allegation as to count one that appellant personally and intentionally discharged a firearm, proximately causing great bodily injury (§ 12022.53, subd. (d)). Appellant admitted he had suffered a prior felony conviction for which he had served a prison term. The court imposed an indeterminate term of 15 years to life on count one and a consecutive term of 25 years to life on the section 12022.53, subdivision (d) enhancement. It imposed a determinate term of two years on count three, a consecutive eight months on count four, and concurrent terms of two years each on counts five and six. The court also stayed a six year term on count two, a four year term on the gun use enhancement, and a three year term on the great bodily injury enhancement.
Discussion
1. The trial court did not err in denying appellant’s request for disclosure of the name of an informant.
Appellant contends the trial court erred in denying his request for disclosure of the name of an informant. We reject the contention.
Evidence Code section 1041 provides in relevant part that a public entity has a privilege to refuse to disclose the identity of an informant if disclosure “is against the public interest because there is a necessity for preserving the confidentiality of [the informant’s] identity that outweighs the necessity for disclosure in the interest of justice . . . .” (Evid. § 1041, subd. (a)(2).) “When, in [a] criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. . . . During the hearing, . . . the prosecuting attorney may request that the court hold an in camera hearing. . . . The court shall not order disclosure, . . . nor dismiss the criminal proceeding . . . unless . . . the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (Evid. Code, § 1042, subd. (d).) “Disclosure is mandated only when the defendant, upon whom the burden falls, produces ‘ “some evidence” [citation]’ (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 419) to show ‘ “a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.” [Citations.]’ [Citation.]” (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152, quoting People v. Montgomery (1988) 205 Cal.App.3d 1011, 1021, italics omitted.)
Here, during the trial, defense counsel asked police inspector Bonner whether someone had told him that he had seen Sims and a man named Derek Lindsey (Lindsey) together five to ten minutes before Sims was shot. Bonner responded, “That’s what that person said.” When defense counsel asked for the name of the person, Bonner invoked the privilege against disclosure and refused to provide the informant’s name. Defense counsel stated to the court: “Under the circumstances, I think I am entitled to the name of that person.”
Lindsey was deceased at the time of trial.
The court indicated its intent to hold an in camera hearing and asked defense counsel whether he had any questions for Bonner. Defense counsel responded: “I would like the court to ask Inspector Bonner if the informant said he or she saw the shooting. [¶] I would like the court to ask Inspector Bonner if the informant indicated that he or she heard any conversation between individuals immediately before the shooting. [¶] . . . [¶] . . . I would want to know whether this person is in fact a percipient witness.” The court held an in camera hearing at which Bonner testified, and the transcript of the hearing was sealed. After the hearing, the trial court stated: “We did have an in camera confidential hearing on whether or not the name of the informant should be disclosed. The informant was not present. The inspector was present and was questioned. And after that questioning, I made a decision that I’ll put on the record now that the name of the informant is not to be revealed and would provide no exculpatory evidence in this case.” The court further stated: “[I]t also became clear that . . . although the informant stated he may have seen . . . . [¶] . . . [¶] [Derek] Lindsey; ten minutes prior, . . . it also may have been as much as eight hours prior.”
The court then instructed the jury that “any issues regarding an alleged informant—whether there is an informant, whether there is not an informant, and the name of the informant is not to be considered by you at all whatsoever in this case. [¶] Furthermore, yesterday there were some questions on cross-examination and there w[ere] some answers given by Inspector Bonner regarding an alleged informant that may have seen a person named [Derek] Lindsey with Darius Sims approximately ten minutes before the shooting. And any information regarding that, whether he saw him ten minutes before or eight hours before, is now going to be stricken. Those answers from the witness stand are stricken from the record as inadmissible hearsay, and they are not to be considered by you for any purpose whatsoever . . . .”
Appellant has asked this court to review the sealed transcript of the in camera hearing to determine whether the trial court’s ruling was correct, and we have done so. The record shows the informant could not have seen Sims with Lindsey immediately before the shooting. It shows the informant did not witness the shooting and did not hear any conversations between Sims and Lindsey. It shows it was likely the informant saw Lindsey and Sims together only for a short moment as Lindsey “came through, was there [with Sims] and then passed through.”
Although appellant correctly points out that an informant need not be an eyewitness to a crime for his or her name to be disclosed, it is also the case that “ ‘[i]f the informer is not a percipient witness to the events which are the basis of the arrest, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest. Thus, “when the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility.” ’ [Citation.]” (In re Benny S. (1991) 230 Cal.App.3d 102, 108.) Here, because the evidence showed that the informant was not a percipient witness and had no knowledge of any events that occurred immediately before the shooting, the trial court was correct in ruling that the informant could not have provided any evidence that, to “a reasonable possibility,” might have exonerated appellant. (See Evid. Code, § 1042, subd. (d).)
The cases on which appellant relies are distinguishable. In People v. Borunda (1974) 11 Cal.3d 523, 527-528 and People v. Ingram (1978) 87 Cal.App.3d 832, 837-838, the informants were not eyewitnesses to the crimes but the evidence showed they had information likely to resolve a critical evidentiary conflict or credibility issue relating to the defendants’ guilt or innocence. In People v. Coleman (1977) 72 Cal.App.3d 287, 293-295, 298, the informant was a participant to the charged offense (a drug sale), and his observations while in an apartment purchasing the drugs might have helped exonerate the defendant.
We also reject appellant’s argument that defense counsel was ineffective in failing to bring a motion to disclose the informant’s name “on a timely basis” and for failing to object to the trial court’s ruling on federal constitutional grounds. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Even assuming counsel’s performance was deficient, we do not see how the result would have been different, had counsel made a request for disclosure earlier, or raised a federal claim in connection with the request. Although the trial court commented that the motion should have been brought earlier, it nevertheless held an in camera hearing to determine whether disclosure was required. Thus, appellant was not prejudiced by the late request. Further, there is no basis to believe that the trial court’s ruling would have been different had appellant articulated a federal basis for his claim. Appellant’s claim of ineffective assistance fails.
2. The trial court erred in imposing a term of fifteen years to life on count one.
Section 664, subdivision (a), provides that a person guilty of premeditated attempted murder “shall be punished by imprisonment in the state prison for life with the possibility of parole.” (Italics added.) Here, the trial court imposed a term of 15 years to life. As the People concede, this was error. Appellant’s failure to object below does not preclude us from correcting this unauthorized sentence. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
Under section 3046, subdivision (a)(1), a person serving such a term is eligible for parole after seven years.
3. The trial court properly imposed a two year term on count three.
Appellant contends the trial court erred in imposing a full two year term on count three (possession of a firearm by a felon) because it was a subordinate term for which one-third of the middle term, or eight months, should have been imposed. The contention is without merit.
Section 1170.1, subdivision (a), provides that when a person is convicted of two or more felonies and “a consecutive term of imprisonment is imposed . . ., the aggregate term of imprisonment . . . shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . . The principal term shall consist of the greatest term of imprisonment imposedby the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”
As noted, the trial court imposed a two year term on count three (possession of a firearm by a felon) and a consecutive eight month term (one-third the middle term of two years) on count four (possession of a firearm by a felon on a different date), for a total determinate term of two years and eight months. The court found that count two (assault with a firearm) and the gun use and great bodily injury enhancements were related to count one (premeditated attempted murder) and therefore stayed the six year term on count two and a total of seven years on the enhancements under section 654, which prohibits multiple punishments for crimes that are based on the same act.
Appellant contends that because the trial court considered the six year term for count two to be the principal term, all other terms, including the term for count three, were subordinate terms for which one-third of the middle term should have been imposed. The plain language of section 1170.1, subdivision (a), however, provides that the principal term “shall consist of the greatest term of imprisonment imposed by the court for any of the crimes.” (Emphasis added.) Here, the trial court did not impose the six year term but properly stayed imposition of it pursuant to section 654. (See People v. Kramer (2002) 29 Cal.4th 720, 722 [“When a defendant is convicted of two or more offenses for which section 654 prohibits multiple punishment, the trial court must impose sentence for one of them and stay imposition of sentence for the others” (emphasis added)].) Although the trial court initially referred to count two as the “principle term,” it later clarified that because it stayed the six year term on count one, “the principal term becomes the 12021 [count three], midterm of 2 years that I intend to impose.”
Appellant has cited no authority for his position that a sentence that is stayed under section 654 can be considered the principal term for purposes of section 1170.1. Accepting appellant’s position would have the effect of rewarding greater criminality because it would reduce the term for count three from two years to eight months simply because appellant was convicted of another offense (count two) for which he suffered no punishment. We avoid interpreting statutes in a way that would lead to such absurd results. (See People v. Loeun (1997) 17 Cal.4th 1, 9 [interpretation of statutory language that leads to absurd results is to be avoided].) The trial court did not err in selecting “the greatest term of imprisonment imposed” (§ 1170.1, subd. (a))–count three–as the principal term and imposing a full two year term on that count.
Appellant also contends that defense counsel provided him with ineffective assistance of counsel because he failed to object to the imposition of the two year term on count three. The record shows, however, that defense counsel did object to the sentence on the same ground on which appellant’s argument on appeal is based, by stating, “I believe that if the court stays [count two] and makes it the primary term, then the other . . . counts would all be subject to one-third the midterm; that is, count [three] would be 8 months, count [four] would be 8 months.” Thus, appellant’s claim of ineffective assistance of counsel fails.
4. The trial court erred in imposing a concurrent term on the prior prison term enhancement.
The People contend the trial court erred in imposing a concurrent term on the prior prison term enhancement. We agree.
Section 667.5, subdivision (b), provides in relevant part that “where [a] new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony . . . .” The use of the word “shall” means that imposition of a consecutive sentence is mandatory; a trial court may not stay the one-year enhancement (People v. Langston (2004) 33 Cal.4th 1237, 1241), nor may it impose a concurrent sentence (People v. Savedra (1993) 15 Cal.App.4th 738, 747-748). A trial court may, however, “in furtherance of justice,” strike an enhancement (§ 1385, subd. (a)) or the additional punishment for that enhancement (§ 1385, subd. (c)), in which case it must set forth in the record its reasons for doing so (§ 1385, subd. (a); Cal. Rules of Court, rule 4.406(b)(7)). The trial court may strike an enhancement or the punishment on the enhancement if it finds mitigating factors to support its action. (See People v. Thomas (1992) 4 Cal.4th 206, 212 [holding “furtherance of justice” standard in section 1385, subdivision (a), “essentially identical” to “circumstances in mitigation” standard under section 1170.1, subdivision (d)].)
Here, the record shows there was an understanding between appellant and the court that a concurrent sentence would be imposed if appellant admitted he had served a prior prison term. Thus, without making any statements regarding mitigating circumstances that may have justified striking the prior prison term, the court accepted appellant’s admission and imposed a concurrent sentence. Because appellant’s admission was based on an understanding that he would receive a concurrent sentence, appellant should be allowed to withdraw his admission if he so wishes. On remand, if the prior prison term is found to be true either by way of appellant’s admission or by a court or jury trial, the trial court shall either strike the enhancement pursuant to section 1385, subdivision (a), with stated reasons for doing so, or impose the enhancement consecutively as required by section 667, subdivision (b).
At the beginning of the sentencing hearing, defense counsel stated: “In informal discussions before this matter was called, the court indicated that [it] would be making a 1 year sentence concurrent sentence. [¶] So I told Mr. Yates that he had a choice: he could stipulate to the prior, or he could ask the court to conduct a court trial. [¶] And after explaining it to Mr. Yates, he indicated to me that he would admit the prior conviction.”
Appellant asks this court to order “specific performance” of the agreement, i.e., to affirm the imposition of a concurrent sentence. In the alternative, he asks us to allow him to withdraw his admission. The cases on which appellant relies in asserting specific performance is required are inapposite because they involve specific performance of sentences approved pursuant to plea agreements between the defendant and the prosecution. (People v. Mancheno (1982) 32 Cal.3d 855, 858-859, 861 [diagnostic study condition included in plea bargain was omitted at pronouncement of judgment]; People v. Kaanehe (1977) 19 Cal.3d 1, 11-13 [prosecutor breached plea agreement]; People v. Newton (1974) 42 Cal.App.3d 292, 298-299 [sentencing commitment made by deputy district attorney not kept due to sentencing by different judge and representation by different deputy public defender and deputy district attorney].) Appellant cites no authority supporting his position that specific performance is required when, after a judgment of conviction by a jury, an unauthorized sentence is imposed pursuant to an agreement between the court and a defendant.
Disposition
The matter is remanded as set forth above to correct the error of imposing a concurrent sentence on appellant’s prior prison term enhancement. Thereafter, the trial court is directed to amend the abstract of judgment to reflect (1) a correct sentence on the prior prison term enhancement and (2) an indeterminate life term on count one. The trial court shall then send a certified copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Siggins, J., Jenkins, J.