The opinion
Filed 7/1/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B247704
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA041538)
v.
JOSEPH WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen Blanchard, Judge. Affirmed as modified.
Bahar Law Office and Sarvenaz Bahar, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson
and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of parts B, C, and D of the DISCUSSION.
INTRODUCTION
A jury convicted defendant Joseph Williams of first degree residential
robbery (§ 211),1 assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(1)) and kidnapping (§ 207, subd. (a)). As to each charge, the jury
found that defendant had personally inflicted great bodily injury upon the victim
Melvin Chandler (§ 12022.7, subd. (a)) and that each offense was committed for
the benefit of a street gang (§ 186.22, subd. (b)(1)(C).)
Following the return of the verdicts, defendant admitted that he had suffered
two felony convictions alleged pursuant both to section 667, subdivision (a)(1) and
the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and that he
had served three prior prison terms pursuant to section 667.5, subdivision (b).
The trial court sentenced him to a term of 25 years to life on each count plus
applicable enhancements for a total sentence of 93 years to life.
Defendant contends, inter alia, that because he received life sentences as a
result of the Three Strikes law, the trial court erred in imposing a consecutive 10-
year term for the gang enhancement on each count rather than the 15-year
minimum parole eligibility requirement found in section 186.22, subdivision
(b)(5). This contention raises an issue of first impression.
Section 186.22, subdivision (b)(5) provides that the 15-year minimum parole
eligibility requirement should be imposed instead of the sentence enhancement
(People v. Johnson (2003) 109 Cal.App.4th 1230, 1237) if the defendant is
convicted “of a felony punishable by imprisonment in the state prison for life.” In
this case, defendant received sentences of 25 years to life as a result of the
application of the Three Strikes law. The question is whether those sentences are
life sentences within the meaning of section 186.22, subdivision (b)(5).
1
All statutory references are to the Penal Code.
2
In the published portion of this opinion, we conclude, based upon People v.
Jones (2009) 47 Cal.4th 566 (Jones), that because defendant’s life sentences are
the result of a penalty provision (the Three Strikes law), they are life sentences
within the meaning of section 186.22, subdivision (b)(5). Consequently, the trial
court erred in imposing the 10-year gang enhancement pursuant to section 186.22,
subdivision (b)(1)(C) and, instead, should have imposed the 15-year minimum
parole term. We modify the judgment to correct this error.
In the non-published portion of our opinion, we reject defendant’s additional
contentions that the trial court erred in imposing consecutive sentences and in
imposing the great bodily injury enhancement (§ 12022.7, subd. (a)) on the
felonious assault count. However, we agree that the abstract of judgment does not
correctly state the trial court’s ruling and direct preparation of an amended abstract
judgment.
We therefore affirm the judgment as modified.
STATEMENT OF FACTS
1. The Crimes
Chandler (the victim) and defendant had been friends for “quite some time.”
Chandler knew that defendant was a member of the Hoover Criminals gang and
that he possessed guns.
During the early evening of January 27, 2008, Chandler went to defendant’s
apartment. In addition to defendant, Kapree Brown and Jevary Whitman were at
the apartment. Chandler knew that Brown was a member of the Hoover Criminals
and that Whitman was a member of the Original Valley Gangsters.
The four men smoked marijuana and watched a film. At one point,
defendant asked Chandler “where the guns at.” Defendant stated that a neighbor
had “seen somebody hop a fence with some guns that was wrapped in a green
3
sheet.” Brown and Whitman joined in the questioning which lasted approximately
20 minutes. Chandler repeatedly denied taking the guns. The confrontation then
became physical and all three men repeatedly hit, kicked and punched Chandler
while he was on the ground, seriously injuring him.2 During the beating, the men
told Chandler that he should not have “mess[ed]” with the Hoover Criminals. The
men removed Chandler’s clothes and shoes and took his wallet and cell phone and
gave him other clothes to wear.
Thereafter, the four men remained in defendant’s apartment for
approximately an hour during which time defendant, Brown and Whitman used
cocaine. Brown suggested that they kill Chandler and left to obtain a gun. A
women known as “Lady Groove” arrived. Chandler knew her to be a member of
the Hoover Criminals. Lady Groove said “they should kill [Chandler], get it over
with.”
Defendant, Whitman, and Lady Groove walked Chandler out of the
apartment while holding on to him. They proceeded to a car parked behind the
apartment building and forced him into the vehicle. A female who Chandler did
not recognize was seated in the driver’s seat. Lady Groove sat in the front
passenger seat and Chandler sat between defendant and Whitman in the back seats.
The unidentified woman drove approximately 5 to 10 minutes for a distance of 1
1/2 to 2 miles and then stopped in an alley.
Defendant and Whitman forced Chandler out of the car. Once outside of the
vehicle, Chandler eventually was able to escape. A friend took him to the sheriff’s
station where he reported that he had been “robbed and beat up.” Within two
weeks, Chandler gave a complete and detailed description of the incident to the
2
Chandler received medical treatment for the injuries to his left eye, face, shoulder,
arm, ribs, and knees. His eye injury required surgery.
4
Sheriff’s Department and made photo identifications of defendant, Whitman and
Brown as his assailants.
Defendant evaded apprehension until he was arrested in September 2011.
2. Expert Testimony About Gangs
Detective Richard Cartmill of the Los Angeles County Sheriff’s Department
testified as a gang expert. He testified that in 2008, the Hoover Criminals gang had
approximately 2,000 members. Its primary activities included murder, assault, and
robbery. Defendant and Whitman were members of the Hoover Criminals. Brown
was a member of the Original Valley Gangsters, a gang that associated with the
Hoover Criminals. As for Lady Groove, the detective testified that “the word
groove is a very common term used in association with the Hoover Criminals. . . .
So hearing somebody being referred to as Lady Groove would make me believe
that [she was] probably in some way involved with the gang Hoover Criminals.”
Presented with a series of hypothetical questions using facts resembling the
evidence in the case, Detective Cartmill opined that the crimes were committed for
the benefit of the Hoover Criminals and with the specific intent to promote its
criminal activity.
3. Defendant’s Sentence
As noted in our introductory statement, defendant admitted prior convictions
alleged pursuant to section 667, subdivision (a)(1) and the Three Strikes law and
that he had served three prior prison terms pursuant to section 667.5, subdivision
(b). Accordingly, the trial court sentenced defendant to a term of 93 years to life
based on the following computations.
On the robbery conviction (count 1), the trial court sentenced defendant to a
term of 25 years to life, plus a consecutive 10-year term for the gang enhancement,
5
a consecutive 3-year term for the great bodily injury enhancement, and two
consecutive 5-year terms for the prior serious felony convictions. This results in a
total sentence of 48 years to life on count 1.3
On the felonious assault conviction (count 2), the trial court imposed the
same sentence as it had for count 1 but then stayed it pursuant to section 654.4
And on the kidnapping conviction (count 3), the trial court sentenced
defendant to a term of 25 years to life, plus a consecutive 10-year term for the gang
enhancement, and two consecutive 5-year terms for the prior serious felony
convictions.5 The trial court imposed, but then stayed pursuant to section 654, a 3-
year term for the great bodily injury enhancement.6 This results in a total executed
sentence of 45 years to life on count 3.
3
The trial court stayed, pursuant to section 654, the sentences for the prior prison
terms pled pursuant to section 667.5, subdivision (b).
4
The trial court stated: “It appears to me that it’s appropriate to only sentence on
one of those counts pursuant to Penal Code section 654. The assault by means of force
likely to produce great bodily injury was really the force that was used for the robbery.
Therefore, they . . . really constitute a single act and an individual [sic] course of conduct.
And therefore, I will only be sentencing on one of those counts.”
5
The trial court found that section 654 did not apply to the kidnapping conviction.
It explained: “I find that this is a separate violent act that was committed after the others
had already been completed. [¶] And the case law is clear that [whether] a course of
conduct is indivisible under Penal Code section 654 depends on the intent and objective
of the act, not the temporal proximity of the offenses. . . . [¶] I think under the
circumstances here where the robbery had been completed, other people arrived, then the
kidnapping occurred; that is indeed indivisible [sic] from the 211 and the 245.”
6
The trial court explained: “Upon hearing the testimony, it seems clear to me that
there was really only one occasion where GBI was committed. It wasn’t as if . . . the
victim [Chandler] was beaten in one location, taken to another location, beaten there [so]
that there are separate GBI’s. So in terms of the GBI allegation, I’m only going to be
imposing it as to one of the counts.”
6
DISCUSSION
A. IMPOSITION OF THE GANG ENHANCEMENT
Defendant first contends that the trial court erred in imposing a 10-year gang
enhancement, pursuant to section 186.22, subdivision (b)(1)(C), as to each count.
We agree.
Section 186.22, subdivision (b)(1)(C) provides that if the gang enhancement
is found true and the underlying felony “is a violent felony, as defined in
subdivision (c) of section 667.5, the [defendant] shall be punished by an additional
term of 10 years.” Here, each of defendant’s convictions qualifies as a violent
felony as defined by section 667.5, subdivision (c) and defendant does not urge to
the contrary. On that basis, the trial court’s imposition of a 10-year enhancement
on each count was proper.
Defendant argues for a contrary conclusion based on the following.
Subdivision (b)(1) of section 186.22 states that “[e]xcept as provided in paragraphs
4 and 5,” the trial court shall impose the gang enhancement. Subdivision (b)(5)
provides, in relevant part: “[A]ny person who violates this subdivision in the
commission of a felony punishable by imprisonment in the state prison for life
shall not be paroled until a minimum of 15 calendar years have been served.”
(Italics added.) “This provision establishes a 15-year minimum parole eligibility
period, rather than a sentence enhancement for a particular term of years.” (People
v. Johnson, supra, 109 Cal.App.4th at p. 1237.)
Thus, the predicate for application of subdivision (b)(5)’s exception to
imposition of a consecutive term for the gang enhancement is that the defendant
has been convicted of a felony punishable by life imprisonment. If the exception
applies, a minimum parole eligibility period of 15 years must be imposed, not an
additional prison term of 10 years. Defendant argues that subdivision (b)(5)
applies because each of his convictions resulted in a sentence of 25 years to life.
7
As a result, he claims “the 10-year gang enhancements should be stricken” because
“the trial court should have applied the 15-year minimum parole term under
subdivision (b)(5) to each count.”
To resolve this claim, we must determine the meaning of the statutory phrase
“a felony punishable by imprisonment . . . for life” as used in subdivision (b)(5) of
section 186.22.
Three Supreme Court cases are relevant to analyzing this claim.
The first is People v. Montes (2003) 31 Cal.4th 350, 352 (Montes). In
Montes, the defendant was convicted of attempted murder with findings that he
committed the crime for the benefit of a street gang (§ 186.22, subd. (b)(1)) and
that he had personally and intentionally discharged a firearm causing great bodily
injury (§ 12022.53, subd. (d)). The trial court sentenced him to the 7-year midterm
for the attempted murder conviction7 plus a consecutive 10-year term for the gang
enhancement, plus a consecutive term of 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)). (Id. at p. 353.)
The issue was whether 186.22, subdivision (b)(5)’s use of the phrase “a
felony punishable by imprisonment . . . for life” applied to the defendant because
his felony conviction coupled with his firearm enhancement resulted in a life
sentence. (Montes, supra, 31 Cal.4th at p. 352.) Based upon its analysis of
legislative and voter intent, Montes concluded: “[S]ection 186.22(b)(5) applies
only where the felony by its own terms provides for a life sentence.” (Ibid., italics
added.) Montes therefore found that the consecutive 10-year term for the gang
enhancement had been correctly imposed because the defendant had not been
7
Attempted murder is punished by a sentence of five, seven or nine years.
(§ 664/187, subd. (a).)
8
convicted of “a felony punishable by imprisonment . . . for life.” (§ 186.22, subd.
(b)(5).) (Id. at p. 353.)
By itself, Montes would require rejection of defendant’s claim. In this case,
none of defendant’s three convictions standing alone provides for a life sentences8
Defendant’s sentence of 25 years to life for each conviction came about by
application of the Three Strikes law. Consequently, Montes supports the
conclusion that the trial court properly imposed the 10-year enhancement found in
section 186.22, subdivision (b)(1)(C).
However, two subsequent Supreme Court opinions have further addressed
the meaning of section 186.22, subdivision (b)(5).
The first is People v. Lopez (2005) 34 Cal.4th 1002 (Lopez). In Lopez, the
defendant was convicted of first degree murder (§ 187). The punishment for that
crime is a term of 25 years to life. (§ 190, subd. (a).) The jury also found that the
defendant had committed the murder for the benefit of a street gang (§ 186.22,
subd. (b)). The trial court sentenced the defendant, among other things, to 25 years
to life in state prison for murder with a consecutive 10-year term for the gang
enhancement. (Id. at p. 1005.)
The Supreme Court granted review in Lopez to decide whether a defendant
convicted of first degree murder with a gang enhancement finding should be
subject to a consecutive term of 10 years under section 186.22, subdivision
(b)(1)(C) or, instead, the minimum parole eligibility term of 15 years set forth in
section 186.22, subdivision (b)(5).
8
The maximum sentences are, respectively, nine years for robbery (§ 213, subd.
(a)(1)(A)), eight years for kidnapping (§ 208, subd. (a)) and four years for assault by
means of force likely to produce great bodily injury (§ 245, subd. (a)(4)).
9
The heart of the dispute was whether the phrase “punishable by
imprisonment . . . for life” in section 186.22, subdivision (b)(5) meant “all life
terms (including terms of years to life)” as contended by defendant or, as urged by
the Attorney General, meant “merely ‘straight’ life terms” so that the phrase did
not include a sentence for first or second degree murder.9 (Lopez, supra, 34
Cal.4th at p. 1007.) Lopez concluded that the statutory language “is plain and its
meaning unmistakable”: “the Legislature intended section 186.22(b)(5) to
encompass both a straight life term as well as a term expressed as years to life . . .
and therefore intended to exempt those crimes from the 10-year enhancement in
subdivision (b)(1)(C). [Citation.]” (Id. at pp. 1006-1007.) Consequently, Lopez
directed deletion of the 10-year sentence for the gang enhancement. (Id. at p.
1011.)
To some extent, Lopez assists defendant. It makes clear that a sentence of
25 years to life is a life sentence with the meaning of section 186.22, subdivision
(b)(5). However, nothing in Lopez questioned or even undermined the earlier
holding in People v. Montes, supra, that section 186.22, subdivision (b)(5) applies
only “where the felony by its own terms provides for a life sentence.” (People v.
Montes, supra, 31 Cal.4th at p. 352.)
The next Supreme Court opinion relevant to this case is Jones, supra, 47
Cal.4th 566. In Jones, the defendant was convicted of shooting at an inhabited
dwelling, a crime punishable by a sentence of three, five or seven years. (§ 246.)
The trial court selected the seven-year term but then imposed a life sentence
pursuant to section 186.22, subdivision (b)(4) because the jury had found the
9
The sentence for second degree murder is 15 years to life. (§ 190, subd. (a).)
10
defendant committed the crime to benefit a street gang.10 (Id. at p. 571.) In
addition, the trial court imposed a consecutive 20-year sentence because the
defendant had personally and intentionally discharged a firearm in committing the
offense. (§ 12022.53, subd. (c).) (Id. at p. 569.) The sentence for that latter
enhancement applies to the felonies listed in section 12022.53, subd. (a)(1-16)) as
well as to “[a]ny felony punishable by . . . imprisonment . . . for life.” (§ 12022.53,
subd. (a)(17).) Shooting at an inhabited dwelling is not one of the listed felonies
but the trial court determined that defendant had been convicted of a felony
punishable by life imprisonment because of the application of section 186.22,
subdivision (b)(4).
On appeal, the issue was whether the trial court properly imposed the 20-
year sentence enhancement (§ 12022.53) based upon its finding that the defendant
had suffered a felony punishable by life. The defense contended that the phrase
“[a]ny felony punishable by . . . imprisonment . . . for life” (§ 12022.53, subd.
(a)(17)) should be narrowly construed as it was in Montes to be limited to a felony
which “by its own terms provides for a life sentence.” (Montes, supra, 31 Cal.4th
at p. 352.) In particular, the defendant urged that his life term could not trigger
application of section 12022.53, subdivision (c)’s additional 20-year prison term
“because his sentence of life imprisonment did not result from his conviction of a
felony (shooting at an inhabited dwelling) but from the application of section
186.22(b)(4), which sets forth not a felony but a penalty.” (Jones, supra, 47
Cal.4th at p. 575.)
10
Section 186.22, subdivision (b)(4) provides: “Any person who is convicted of a
felony enumerated in this paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members, shall, upon conviction of that felony, be
sentenced to an indeterminate term of life imprisonment . . . [¶] (B) . . . a felony
violation of Section 246.”
11
Jones discussed and distinguished Montes as follows:
“Thus, this court in Montes, supra, 31 Cal.4th 350, narrowly
construed the statutory phrase ‘a felony punishable by imprisonment
. . . for life,’ which appears in subdivision (b)(5) of section 186.22, as
applying only to crimes where the underlying felony provides for a
term of life imprisonment. (Id. at p. 352.) Defendant here argues that
to be consistent with Montes, we should give the statutory phrase
‘felony punishable by . . . imprisonment in the state prison for life,’
which appears in subdivision (a)(17) of section 12022.53, the same
narrow construction, and that, so construed, it does not include a life
sentence imposed under an alternate penalty provision. We agree with
defendant that these statutory phrases should be construed similarly.
But we disagree that, construed narrowly, a felony that under section
186.22(b)(4) is punishable by life imprisonment is not a ‘felony
punishable by . . . imprisonment in the state prison for life’ within the
meaning of subdivision (a)(17) of section 12022.53.
“Unlike the life sentence of the defendant in Montes, supra, 31
Cal.4th 350, which was imposed as a sentence enhancement (a
punishment added to the base term), here defendant’s life sentence
was imposed under section 186.22(b)(4), which sets forth the penalty
for the underlying felony under specified conditions. The difference
between the two is subtle but significant. ‘Unlike an enhancement,
which provides for an additional term of imprisonment, [a penalty
provision] sets forth an alternate penalty for the underlying felony
itself, when the jury has determined that the defendant has satisfied
the conditions specified in the statute.’ [Citation.] Here, defendant
committed the felony of shooting at an inhabited dwelling (§ 246), he
personally and intentionally discharged a firearm in the commission
of that felony (§ 12022.53(c)), and because the felony was committed
to benefit a criminal street gang, it was punishable by life
imprisonment (§ 186.22(b)(4)). Thus, imposition of the 20-year
sentence enhancement of section 12022.53(c) was proper.” (Jones,
supra, 47 Cal.4th at pp. 577-578, some italics added.)
In a footnote to that discussion, Jones explained:
“The issue in Montes, supra, 31 Cal.4th 350, was in some
respects the reverse of the issue here. In Montes, the trial court
imposed a life term under section 12022.53, and at issue was the
12
applicability of a provision in section 186.22 limiting parole eligibility
for any person convicted of a ‘felony punishable by imprisonment . . .
for life.’ (Id., subd. (b)(5).) Here, by contrast, the Court of Appeal
ordered the trial court on remand to impose a life term under section
186.22, and at issue is the applicability of language in section
12022.53 imposing additional punishment for any person convicted of
a ‘felony punishable by . . . imprisonment . . . for life.’ (§ 12022.53,
subd. (a)(17).) But the life term imposed in Montes under section
12022.53 was a sentence enhancement, whereas in this case the life
term was imposed under section 186.22(b)(4), a penalty provision. As
explained in the text (see p. 578, post ), this is an important
distinction.” (Jones, supra, 47 Cal.4th at p. 577, fn. 5.)
Jones supports defendant’s contention that the 10-year gang enhancements
were improperly imposed. Jones held that there is an important distinction
between, on the one hand, a sentence enhancement that results in a life sentence,
and, on the other hand, a penalty provision that results in a life sentence. Jones
concluded that if a life sentence results from a penalty provision (e.g., § 186.22,
subd. (b)(4)) as opposed to a sentence enhancement (e.g., § 12022.53), the
defendant has been convicted of “[a]ny felony punishable by . . . imprisonment in
the state prison for life.” (§ 12022.53, subd. (a)(17).) In other words, to determine
whether the punishment imposed for a felony conviction constitutes a life sentence,
we look at the applicable sentencing scheme but not at any applicable
enhancement(s). (See also Montes, supra, 31 Cal.4th at p. 353 [agreeing with the
Attorney General “that section 186.22(b)(5) applies only where the underlying
felony itself provides for a life sentence, ruling out any enhancement not included
in the definition of the underlying felony.”].)
In this case, defendant received sentences of 25 years to life. These
sentences of 25 years to life constitute life sentences within the meaning of section
186.22, subdivision (b)(5). (Lopez, supra, 34 Cal.4th at p. 1007.) These life
sentences resulted from the application of the Three Strikes law. The Three Strikes
13
law is a penalty provision, not an enhancement. It is not an enhancement because
it does not add an additional term of imprisonment to the base term. Instead, it
provides for an alternate sentence (25 years to life) when it is proven that the
defendant has suffered at least two prior serious felony convictions. (See, e.g.,
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527 [“The Three Strikes
law . . . articulates an alternative sentencing scheme for the current offense rather
than an enhancement.”].)
In light of Jones’s direction that the phrases “[a]ny felony punishable by . . .
imprisonment in the state prison for life” (§ 12022.53, subd. (a)(17)) and “a felony
punishable by imprisonment in the state prison for life” (§ 186.22, subd. (b)(5))
“should be construed similarly” (Jones, supra, 47 Cal.4th at p. 577), it follows that
because defendant’s life sentences are the result of a penalty provision, he has been
convicted of “felon[ies] punishable by imprisonment in the state prison for life”
(§ 186.22, subd. (b)(5)). The trial court therefore erred in imposing the 10-year
gang enhancements pursuant to section 186.22, subdivision (b)(1)(C). Instead, the
trial court should have imposed the 15-year minimum parole term. We therefore
modify the judgment to delete the 10-year gang enhancements on each count and
to insert the 15-year minimum term for parole eligibility.11
B. CONSECUTIVE SENTENCES
Defendant next contends that the trial court erred when it “imposed
consecutive sentences for counts 1 [robbery] and 3 [kidnapping] based on its
mistaken belief that the current version of section 1170.12 was applicable which
makes consecutive sentences mandatory.” Defendant therefore asks us to “strike
11
The jury’s true findings on the gang enhancements remain as they are supported
by substantial evidence. The Board of Prison Terms may consider these findings when
determining defendant’s release date. (Lopez, supra, 34 Cal.4th at p. 1009.)
14
the consecutive sentence imposed on count 3 and remand to the trial court for its
determination whether a consecutive or concurrent sentence should be imposed for
count 3.” We are not persuaded.
Defendant urges, and the Attorney General agrees, that under the original
version of the Three Strikes law—the law in effect when defendant committed the
crimes in 2008—the trial court was required to impose consecutive sentences if the
felonies were not committed on the same occasion and did not arise from the same
set of operative facts. (People v. Hendrix (1997) 16 Cal.4th 508, 512-513.)
Otherwise, the trial court retained discretion to impose consecutive or concurrent
sentences. (Id. at p. 514.)
In 2012, the voters approved Proposition 36 which amended the Three
Strikes law. The law now requires the trial court to impose a consecutive sentence
on multiple serious or violent felony convictions even if the crimes occurred on the
same occasion or arose from the same set of facts.
In this case, neither party filed a sentencing brief in the trial court addressing
which version of the Three Strikes law applied to defendant. The trial court, after
sentencing defendant, simply stated: “There are mandatory sentences here because
they involve current convictions for more than one serious or violent felony.”
Defense counsel did not object to this statement.
Defendant now claims that the trial court’s mistaken belief that the current
version of the Three Strikes law requiring consecutive sentences applied to him
violated the prohibition against ex post facto laws because that resulted in a greater
punishment than was available when he committed the crimes.
The Attorney General first urges that the claim has been forfeited because it
was not raised below. The Attorney General is incorrect. A sentence violating the
prohibition against ex post facto laws constitutes an unauthorized sentence that
“may be corrected even when raised for the first time on appeal.” (People v.
15
Valenzuela (2009) 172 Cal.App.4th 1246, 1249.) We therefore address, but then
reject, the claim on its merits.
The Attorney General asserts that even if defendant can raise this claim,
consecutive sentences were mandated under the former version of the Three
Strikes law because the robbery and kidnapping were not committed on the same
occasion and did not arise from the same set of operative facts. We agree.
“The statutory phrase ‘committed on the same occasion’ refers to ‘at least a
close temporal and spatial proximity between the acts underlying the current
convictions.’ [Citation.] The statutory phrase ‘arising from the same set of
operative facts’ refers to ‘sharing common acts or criminal conduct that serves to
establish the elements of the current felony offenses of which defendant stands
convicted.’ [Citation.]” (People v. Coelho (2001) 89 Cal.App.4th 861, 864, fn. 1.)
Here, the robbery and kidnapping did not share a close temporal and spatial
proximity and the crimes did not share common acts.
Defendant and his accomplices committed the robbery inside defendant’s
apartment when they took Chandler’s property (clothes, wallet and cell phone) by
force. At that point, the robbery was complete. Thereafter, the men stayed in the
apartment for an hour as activities unrelated to the robbery unfolded. Defendant,
Brown and Whitman used cocaine. Brown left the apartment to obtain a gun to kill
Chandler. Lady Groove, a member of the Hoover gang, arrived and stated that
Chandler should be killed as soon as possible. After approximately an hour
passed, the kidnapping commenced when defendant, Whitman and Lady Groove
forced Chandler out of the apartment and into a car, and drove five to ten minutes
to the alley.
Because there was both a temporal break (an hour) and a spatial break
(forcing Chandler out of the apartment and into a car, and driving him a distance of
1 1/2 to 2 miles) between the robbery and kidnapping, the offenses were not
16
committed on the same occasion. Further, the crimes did not arise from the same
set of operative facts because different force was used to commit each one. To
commit the robbery, defendant and his accomplices beat and kicked Chandler. To
commit the kidnapping an hour later, defendant and his accomplices used force and
fear to move Chandler from the apartment, into the car, and to the alley. In sum,
because consecutive sentences were required under the former version of the Three
Strikes law, defendant’s sentence does not violate the prohibition against ex post
facto laws.
To avoid that conclusion, defendant cites case law about the elements of
robbery and jury instructions defining robbery. For instance, he notes that People
v. Carter (1993) 19 Cal.App.4th 1236 provides that “a robbery continues until the
perpetrator has reached a place of temporary safety” so that in “cases involving a
kidnapping and robbery,” the robber does not reach “a place of temporary safety so
long as the victim remained under the robber’s control. [Citations.]” (Id. at p.
1251; see also People v. Anderson (2011) 51 Cal.4th 989, 994 [“‘The crime of
robbery is a continuing offense that begins from the time of the original taking
until the robber reaches a place of relative safety.’”].)
From those principles, defendant argues that the robbery was still in progress
when the kidnapping occurred so that the predicates for consecutive sentences
were not present. Defendant’s reliance upon that authority is misplaced. The issue
in the cases that referred to robbery as a continuing offense was application of the
felony-murder rule. Hence, the court was required to determine whether the
homicide was committed while the robbery was still in progress. Here, on the
other hand, the issue is whether the robbery and kidnapping were committed on the
same occasion and arose from the same set of operative facts within the meaning
of the Three Strikes law. As explained above, we have concluded, based upon
decisional authority interpreting those phrases, that the robbery and kidnapping
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were not committed on the same occasion and did not arise from the same set of
operative facts.
C. IMPOSITION OF THE GREAT BODILY INJURY
ENHANCEMENT ON COUNT 2
Defendant contends that the trial court erred in imposing a three-year
enhancement for great bodily injury on count 2 (felonious assault). We find no
error because the trial court imposed but then stayed the entire sentence.
Insofar as is relevant, the court sentenced defendant on count 2 as follows.
It imposed a term of 25 years to life pursuant to the Three Strikes law, plus a
consecutive 3-year term for the great bodily injury enhancement (§ 12022.7, subd.
(a)), and a consecutive 10-year term for the gang enhancement (§ 186.22, subd.
(b)(1)(C)) but then stayed execution of the entire sentence.
Section 1170.1, subdivision (g) provides, in relevant part: “When two or
more enhancements may be imposed for the infliction of great bodily injury on the
same victim in the commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense.”
Defendant argues a portion of his sentence violates section 1170.1,
subdivision (g) because the great bodily injury enhancement was used twice. First,
his infliction of great bodily injury on Chandler subjected him to a three-year
enhancement under section 12022.7, subdivision (a). Second, this same infliction
of great bodily injury on Chandler turned the underlying assault conviction into a
“violent felony” within the meaning of section 667.5, subdivision (c)(8), which, in
turn, subjected him to the 10-year gang enhancement under section 186.22,
subdivision (b)(1)(C).
The Attorney General concedes that People v. Gonzalez (2009) 178
Cal.App.4th 1325 found that a similar sentence violated section 1170.1,
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subdivision (g). However, the Attorney General distinguishes that case in the
following way. There, the trial court imposed and executed consecutive sentences
on the two enhancements. Here, on the other hand, the trial court imposed but
stayed execution of both enhancements. Based upon People v. Gonzalez (2008) 43
Cal.4th 1118 (Gonzalez), we conclude that this distinction is well-taken.
In Gonzalez, supra, 43 Cal.4th at page 1127, our Supreme Court interpreted
language in section 12022.53, subdivision (f) that is similar to the language in
section 1170.1, subdivision (g). The former provides, in pertinent part, that when
“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.” (§ 12022.53, subd. (f).) Gonzalez explained that the term
“impose,” as used in that provision, means “impose and then execute,” as opposed
to “impose and then stay.” (Id. at p. 1126.) Accordingly, Gonzalez concluded that
section 12022.53, subdivision (f), “directs that only one enhancement may be
imposed and then executed per person for each crime, and allows a trial court to
impose and then stay all other prohibited enhancements.” (Gonzalez, supra, 43
Cal.4th at p. 1127.)
The same reasoning applies with equal force to section 1170.1, subdivision
(g). We therefore interpret section 1170.1, subdivision (g) to prohibit a trial court
from imposing and executing more than one enhancement based on a defendant’s
infliction of great bodily injury on the same victim. In this case, while the trial
court could not impose and execute the two enhancements at issue without
violating section 1170.1, subdivision (g) (see People v. Rodriguez (2009) 47
Cal.4th 501, 509; People v. Gonzalez, supra, 178 Cal.App.4th at p. 1328), the trial
court imposed and stayed defendant’s entire sentence on count 2, including all of
the enhancements, pursuant to section 654. Because none of the enhancements
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was executed, the trial court’s sentence did not violate section 1170.1, subdivision
(g).
D. MODIFICATION OF THE ABSTRACT OF JUDGMENT
Lastly, defendant contends, and the Attorney General agrees, that the
abstract of judgment incorrectly reflects his sentence because box 6(c) is checked
to indicate that he received a sentence of 48 years to life on counts 1, 2, and 3.
This is incorrect. Box 6(b) should have been checked to indicate that defendant
received a sentence of 25 years to life on counts 1, 2, and 3 “PLUS enhancement
time shown above.” We direct preparation of an amended abstract of judgment to
correct this error.
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DISPOSITION
The judgment is modified to delete the 10-year gang enhancements
imposed on each count under section 186.22, subdivision (b)(1)(C) and to replace
them with the 15-year minimum term for parole eligibility required by section
186.22, subdivision (b)(5). The trial court is directed to prepare and forward to the
Department of Corrections and Rehabilitation a certified copy of an amended
abstract of judgment that reflects that modification and also corrects the error in the
original abstract of judgment noted in part “D” of our discussion. As so modified,
the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
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