IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
January 21, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN SOK, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed in part, reversed in part, remanded with directions. (Los Angeles County Super. Ct. Nos. NA076498, NA076735)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Following a jury trial, John Sok was convicted of two counts of attempted murder with related firearm-use and criminal street gang enhancements, as well as one count of shooting at an occupied motor vehicle and multiple counts of unlawful firearm and ammunition possession. He was sentenced as a second strike offender, based on a prior juvenile adjudication, to an aggregate state prison term of 84 years to life. On appeal Sok does not challenge his convictions but raises a number of objections to the calculation of his sentence. As Sok contends, a number of sentencing errors were made.*fn1 Several of Sok's claims have merit. Accordingly, we remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
The charges against Sok, an admitted member of the Asian Boyz criminal street gang, arose from two separate shootings. On October 26, 2007, after asking Fernando Vega where he was from, Sok fired several shots into Vega's car, wounding a passenger, Jose Rocha, in the hand and leg. Also in the car with Vega and Rocha were Josue Jacobo and Alfred Lopez, neither of whom was hit by the gunfire. On November 17, 2007 shots were fired at a residence during a party. Police responding to the incident were told Sok had a gun. A search of Sok's car uncovered a loaded nine-millimeter Glock pistol inside the trunk. According to a criminalist, based on bullet casings recovered from each of the crime scenes, the bullets fired in both incidents came from the nine- millimeter Glock pistol found in Sok's car.
Based on the first incident, Sok was charged with four counts of attempted willful deliberate and premeditated murder (count 3, Jose Rocha; count 4, Fernando Vega; count 5, Josue Jacobo; and count 6, Alfredo Lopez) (Pen. Code, §§ 664, 187, subd. (a))*fn2 ; one count of unlawful possession of a firearm in violation of section 12021, subdivision (e) (count 7); one count of unlawful possession of ammunition (count 8) (§ 12316, subd. (b)(1)); and one count of shooting at an occupied motor vehicle (count 9) (§ 246). Based on the second incident, Sok was charged with one additional count of unlawful possession of a firearm and one count of unlawful possession of ammunition.
An amended information specially alleged each of the crimes had been committed to benefit a criminal street gang*fn3 and, as to counts 3, 4, 5, 6 and 9, specially alleged firearm-use enhancements under section 12022.53, including under section 12022.53, subdivision (d), for the attempted murder of Rocha and shooting at an occupied vehicle. It was also specially alleged Sok was subject to sentencing under the "Three Strikes" law for having suffered one prior juvenile adjudication (assault with a deadly weapon) (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In a bifurcated proceeding before trial, Sok admitted he had suffered a prior juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of the Three Strikes law, and for purposes of the two counts alleging unlawful possession of a firearm by a person previously adjudged a ward of the juvenile court for committing one of a series of specified offenses (§ 12021, subd. (e)).
The jury convicted Sok of the attempted murders of Rocha and Vega, shooting at an occupied vehicle and the unlawful possession counts, but was unable to reach a verdict on the charges of attempted murder of Jacobo and Lopez. (Those counts were later dismissed on the People's motion.) Due to a clerical error in the verdict form, the jury made no findings as to premeditation with respect to the attempted murders of Rocha and Vega. The People elected not to pursue those allegations, and the defense waived any defect in the verdict form.
The jury also found true the firearm-use and criminal street gang enhancements alleged with respect to the two attempted murder counts on which it returned guilty verdicts and for shooting at an occupied vehicle. In addition, the jury found true the criminal street gang allegations with respect to the unlawful possession counts for the November 17, 2007 shooting incident, but not the October 26, 2007 incident.
The trial court sentenced Sok to an aggregate state prison term of 84 years to life. Count 3, the attempted murder of Rocha, was identified as the principal term. The court selected the middle term of seven years, plus 10 years for the criminal street gang enhancement (§ 186.22, subd. (b)(1)(C)), plus an additional 25 years to life as the enhancement for discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)). The court then doubled the entire sentence (including the enhancements) under the Three Strikes law. The court imposed a concurrent sentence for the attempted murder of Vega, count 4, consisting of the middle term of seven years plus 20 years for personally discharging a firearm. The court stayed imposition of sentence on count 9, shooting at an occupied vehicle, pursuant to section 654, but identified the sentence as the middle term of five years, plus 10 years for the criminal street gang enhancement, plus 25 years to life as the enhancement for discharging a firearm causing great bodily injury. The court also imposed concurrent two year sentences for each of the two unlawful firearm possession counts and the two unlawful possession of ammunition counts and enhanced all four counts by three years each for the criminal street gang enhancements.
1. The Trial Court Erred in Calculating Sok's Sentence for the Attempted Murder of Rocha (Count 3)
a. The Court Improperly Doubled the Enhancements Imposed on Count 3
If, as here, a defendant has one prior strike conviction that has been pleaded and either proved or admitted,*fn4 the determinate term for the current felony offense is twice the term otherwise provided as punishment. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) However, enhancements are added after the determination of the base term and are not doubled. (People v. Hardy (1999) 73 Cal.App.4th 1429, 1433 ["[i]n sentencing a defendant who has one prior strike, the court may not double any enhancements it imposes"]; People v. Dominguez (1995) 38 Cal.App.4th 410, 424 ["the terms for the offenses themselves must be doubled for a `second strike' defendant, but no term for an enhancement is doubled"]; see People v. Ramirez (1995) 33 Cal.App.4th 559, 573-574.) As the People now acknowledge, the trial court erred in doubling both the criminal street gang and the firearm-use enhancements imposed on count 3.*fn5
b. The Court Properly Imposed a 10-Year Gang Enhancement on Count 3
Most felonies committed to benefit a criminal street gang are subject to an additional prison term of two, three or four years, at the trial court's discretion. (§ 186.22, subd. (b)(1)(A).) If the underlying crime is a serious felony, the additional term is five years (§ 186.22, subd. (b)(1)(B)); if, as here with respect to counts 3, 4 and 9, the underlying felony is a violent felony, the additional term is generally 10 years (§ 186.22, subd. (b)(1)(C)). However, if the felony committed to benefit a criminal street gang is one "punishable by imprisonment in the state prison for life," rather than impose one of the determinate term enhancements provided in subdivision (b)(1)(A), (B) or (C), the court must apply a 15-year minimum parole eligibility period to the indeterminate life term pursuant to section 186.22, subdivision (b)(5). (See People v. Lopez (2005) 34 Cal.4th 1002, 1007; People v. Fiu (2008) 165 Cal.App.4th 360, 390.)
Noting that his aggregate sentence on count 3 results in an indeterminate life term because the court imposed a 25-year-to-life enhancement for his personal discharge of a firearm causing great bodily injury under section 12022.53, subdivision (d), Sok argues the parole limitation of section 186.22, subdivision (b)(5), is applicable, and the 10-year enhancement in section 186.22, subdivision (b)(1)(C), is not. The Supreme Court considered and rejected an identical argument in People v. Montes (2003) 31 Cal.4th 350. As here, the defendant in Montes was convicted of attempted murder; the trial court found he had caused great bodily injury by personally and intentionally discharging a firearm (§ 12022.53, subd. (d)) and had committed the crime to benefit a criminal street gang (§ 186.22). At issue in Montes was whether a crime subject to the additional punishment provided for in subdivision (d) of section 12022.53 is "a felony punishable by imprisonment . . . for life" within the meaning of subdivision (b)(5) of section 186.22. The Supreme Court held it was not, explaining that subdivision (b)(5) of section 186.22 "applies only where the felony by its own terms provides for a life sentence." (Montes, at p. 352.) Because attempted murder is a violent felony within the meaning of section 186.22, subdivision (b)(1)(C), the trial court in Montes-and the trial court in the case at bar-properly applied a consecutive 10-year term for the criminal street gang enhancement. (See Montes, at pp. 353, 362.)
In sum, the proper sentence for count 3, using the middle term for attempted murder, was seven years, doubled to 14 years, plus 10 years for the gang enhancement and 25 years to life for the firearm-use enhancement, for an aggregate sentence of 49 years to life.*fn6
2. The Trial Court Erred in Applying the Criminal Street Gang Enhancement to Sok's Sentence for Shooting at an Occupied Vehicle (Count 9)
As he did with respect to the sentence imposed on count 3, Sok argues the trial court erred in imposing a 10-year criminal street gang enhancement under section 186.22, subdivision (b)(1)(C), to count 9, shooting at an occupied vehicle, because the imposition of a 25-years- to-life firearm-use enhancement triggers the provisions of section 186.22, subdivision (b)(5). As discussed above, under People v. Montes, supra, 31 Cal.4th 350, subdivision (b)(5) of this section is not applicable unless the felony by its own terms provides for a life sentence.
Although Sok's argument is misplaced, he is correct the trial court erred in imposing a 10-year criminal street gang enhancement on count 9 pursuant to section 186.22, subdivision (b)(1)(C). Section 186.22, subdivision (b)(4), not subdivision (b)(1)(C), is applicable if the felony committed to benefit a criminal street gang is "a home invasion robbery. . . ; carjacking . . . ; a felony violation of Section 246 [the crime committed here]; or a violation of Section 12022.55." (§ 186.22, subd. (b)(4)(B).) Rather than a determinate term enhancement, section 186.22, subdivision (b)(4), provides for an indeterminate life term as a mandatory alternate penalty "with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined . . . pursuant to [the determinate sentencing law] for the underlying conviction . . . [or] ¶] (B) [i]mprisonment in the state prison for 15 years . . . ." (§ 186.22, subd. (b)(4); see People v. Jones (2009) 47 Cal.4th 566, 571.)*fn7
Under section 186.22, subdivision (b)(4)(B), Sok was subject to an indeterminate life sentence on count 9 of 55 years to life: a minimum term for the indeterminate life sentence of 15 years, doubled under the Three Strikes law (see People v. Jefferson (1999) 21 Cal.4th 86, 99, 101 [§ 186.22, subd. (b)(5) establishes a minimum term of 15 years before parole eligibility that is subject to doubling under the Three Strikes law]), plus 25 years to life for the firearm-use enhancement under section 12022.53, subdivision (d). Because the minimum term of the indeterminate sentence calculated under subdivision (b)(4)(A) is greater than 15 years, however, the subdivision (b)(4)(A) formula must be used by the trial court on remand.*fn8
Application of section 186.22, subdivision (b)(4)(A), initially involves a sentencing choice by the trial court because the normal determinate term triad for violating section 246 is three, five or seven years. If this were not a second strike case, in calculating the minimum term of the indeterminate term under subdivision (b)(4)(A), the trial court would add 25 years to the base term selected-the "determinate" portion of the otherwise applicable firearm-use enhancement-for an indeterminate life term of 28, 30 or 32 years to life. Because Sok admitted before trial he had suffered a prior juvenile adjudication that qualified as a strike under the Three Strikes law, the minimum term of this alternate penalty provision must be doubled to 56, 60 or 64 years to life. (§ 667, subd. (e)(1) ["[i]f a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction"]; see People v. Jefferson, supra, 21 Cal.4th at p. 101.) Although doubling the minimum term for an indeterminate term calculated under subdivision (b)(4)(A) in this case includes the 25-year portion of the minimum term attributable to the firearm-use enhancement, because subdivision (b)(4)(A) sets forth an alternate penalty for the underlying felony itself when the jury has determined the defendant has satisfied the gang-related conditions specified in the statute (see People v. Jones, supra, 47 Cal.4th at p. 578), this result is mandated by the clear language of section 667, subdivision (e)(1), and is not inconsistent with the prohibition against doubling the term for an enhancement. (See Jefferson, at p. 96 [phrase "minimum term for an indeterminate term" as used in § 667, subd. (e)(1), includes statutes "requiring a prisoner to serve a specified term of incarceration before being released on parole"].)
That said, an additional term of 25 years to life for the firearm- use enhancement under section 12022.53, subdivision (d), is not properly added to the 56, 60 or 64 years to life term since the enhancement was already used as the basis for determining the minimum term under section 186.22, subdivision (b)(4)(A). As the Supreme Court explained in People v. Montes, supra, 31 Cal.4th at page 361, section 186.22, subdivision (b)(4)(A) "combines an underlying felony with an enhancement in order to establish a minimum term." That is, instead of the firearm- use enhancement being added to a determinate base term for the underlying crime, it is incorporated into an indeterminate sentence when fixing the minimum term (assuming the total number of years exceeds 15). Having used the enhancement once in this manner, it cannot be used a second time with respect to the count 9 offense. (§ 12022.53, subd. (f) ["[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime"]; see also People v. Jenkins (1995) 10 Cal.4th 234, 253 [under habitual offender statute, § 667.7, subd. (a)(1), five-year prior-conviction enhancement under § 667, subd. (a), may not be included in calculation of defendant's minimum term and also imposed consecutively onto the life term; "court is required to use applicable enhancements to calculate the offender's hypothetical sentence apart from section 667.7-a sentence which, if greater than 20 years, defines the defendant's minimum period of required imprisonment. Nothing in the statute suggests that the Legislature intended that those same enhancements be used again to add an additional term of imprisonment onto the life term."]; but see People v. Dotson (1997) 16 Cal.4th 547, 559-560 [five-year enhancement for prior convictions under § 667, subd. (a), should be added to life sentence imposed under Three Strikes Law even though they were already used in calculating the minimum term];*fn9 People v. Coker (2004) 120 Cal.App.4th 581, 589-590 [firearm-use enhancement properly included in calculation of minimum indeterminate Three Strikes term and separately added to the life term as an enhancement].)
Although we conclude the section 12022.53 gun enhancement should not be used both to establish the minimum term of the indeterminate life term under section 186.22, subdivision (b)(4)(A), and as a separate enhancement of that life term-an interpretation of the statutes with which the Attorney General appeared to agree at oral argument-we acknowledge the issue is not free from doubt and could, in at least certain circumstances, produce a somewhat anomalous result. For example, in a case without special allegations under the Three Strikes law, a defendant convicted of shooting at an occupied vehicle for the benefit of a criminal street gang with a firearm-discharge enhancement alleged under section 12022.53, subdivision (c), would be sentenced to a state prison term of 35 years to life if section 186.22, subdivision (b)(4)(B) applied: 15 years to life plus 20 years for personally discharging a firearm. However, under section 186.22, subdivision (b)(4)(A), using the middle term of five years for the section 246 violation, the minimum term of the indeterminate life term would be 25 years. Because that minimum term is greater than 15 years, it must be selected as the minimum term pursuant to the plain language of section 186.22, subdivision (b)(4). Yet, if, as we hold, the gun enhancement is not then properly added to the indeterminate term of imprisonment for the offense itself because it was used in calculating the minimum term of the life term, the total sentence for this charge would be 25 years to life, rather than 35 years to life, the result under subdivision (b)(4)(B). Nonetheless, as the Supreme Court has observed in another, related context, "Proposition 21 [which added subdivision (b)(4) to section 186.22] recognized that not all of its provisions necessarily established the greatest possible punishment." (People v. Lopez, supra, 34 Cal.4th at p. 1009.)
3. The Trial Court Needs To Reconsider Whether To Stay Count 3 or 9 Pursuant to Section 654
Section 654*fn10 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Lewis (2008) 43 Cal.4th 415, 419; People v. Latimer (1993) 5 Cal.4th 1203, 1216.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; Latimer, at p. 1208.) On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she "may be punished for each statutory violation committed in pursuit of each objective" even though the violations were otherwise part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) "`The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple.' [Citation.] `A defendant's criminal objective is "determined from all the circumstances . . . ."'" (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
The trial court concluded-and the People do not dispute-Sok had but a single criminal intent and objective when he shot into Vega's car and attempted to murder both Rocha and Vega. Accordingly, the court properly determined under section 654 Sok could not be sentenced for both attempted murder and shooting at an occupied vehicle. However, section 654 requires the court to impose punishment under the provision that provides for the longest potential term of imprisonment. Properly calculated, the sentence for count 9 is greater than concurrent sentences for counts 3 and 4. Accordingly, absent different discretionary sentencing choices by the trial court, on remand the court should impose the aggregate sentence for count 9, discussed above, while staying the sentences on counts 3 and 4 pursuant to section 654.
4. The Trial Court Improperly Sentenced Sok on the Unlawful Gun Possession and Ammunition Counts
The trial court committed several errors in sentencing Sok on the unlawful gun possession and unlawful possession of ammunition counts. First, as the People concede, having sentenced Sok for his two convictions for unlawful possession of a firearm (§ 12021, subd. (e)), the trial court erred in failing to stay the sentences for counts 2 and 8 (unlawful possession of ammunition, § 12316, subd. (b)(1)) pursuant to section 654 because the ammunition at issue in those two counts was either loaded into Sok's handgun or had been fired from that gun.*fn11 There is no evidence in the record that would support the trial court's implied factual finding that Sok had different or multiple objectives in possessing the loaded firearm and possessing the ammunition in the gun itself.
Second, as the People also acknowledge, the trial court erred when it imposed criminal street gang enhancements on counts 7 and 8 (the unlawful firearm possession and unlawful possession of ammunition charges arising out of the October 26, 2007 incident) because those allegations were found not true by the jury. Finally, the trial court erred by failing to double the base term in counts 1, 2, 7 and 8 pursuant to the Three Strikes law.
The sentence imposed in this matter is vacated and the matter remanded for resentencing. In all other respects the judgment is affirmed.
We concur: WOODS, J., ZELON, J.