IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TONY JOHNSON, SR., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 08F08054, 08F10037, 09F01034, 09F08416)
The opinion of the court was delivered by: Mauro , J.
P. v. Johnson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Tony Johnson, Sr., of assault with a firearm and possession by a felon of a firearm. (Pen. Code, §§ 245, subd. (a)(2), 12021, subd. (a)(1).) He then pleaded no contest in three other felony cases involving drunk driving and related charges. The trial court sentenced him to prison for eight years. Defendant timely appealed.
Defendant contends no substantial evidence supports the conviction for assault with a firearm and the trial court did not adequately respond to a jury question about the assault instruction. We reject these contentions. Defendant also contends, and the Attorney General agrees, that the trial court erred in imposing concurrent sentences for two on-bail enhancements, and that the abstract of judgment is incorrect in certain particulars. We will remand with directions to the trial court to resentence defendant and to prepare a new abstract of judgment.
In the case tried to the jury, case No. 08F08054, defendant was tried with his son, Tony Londell Johnson, Jr., who is not a party to this appeal. Because of the nature of defendant's contentions, we summarize the evidence as it was presented to the jury. The People's case began with reluctant witnesses, followed by testimony about what those witnesses reported before trial. The People's general theory was that defendant pointed a gun at Bryan Jones while threatening to shoot Jones.
Gail Rhinehart, who testified while in custody due to her failure to appear in court, grew up with defendant's sister, Cynthia Woodruff, and has known defendant for about 25 years. She lived with her mother, Alvina Rhinehart. Bryan Jones, whom she has known her whole life, lived next door. Gail Rhinehart claimed not to remember what happened on September 27, 2008, nor to remember speaking to a peace officer that day, nor to remember speaking to an investigator. When shown photographs depicting her injuries, she claimed not to remember receiving them. She claimed not to remember her prior conviction involving moral turpitude, but remembered being convicted of animal abuse in 2008, and later admitted she had a long criminal history that included an armed robbery and spending time in jail and in prison. She admitted she had used drugs and alcohol throughout her life and "Maybe" that had impaired her ability to function in society. She first claimed not to know what a "snitch" was, then testified it was a bad thing to tell on somebody for what they did, then testified being a snitch meant lying about someone. She did not remember telling an investigator that she was scared when defendant and two men came to her house and made her sign a statement about what had happened, nor did she remember defendant calling her on the phone and telling her to write a letter saying she had not seen a gun. She claimed she was not mad at the prosecutor for jailing her in order to secure her testimony. She denied discussing with Cynthia Woodruff that defendant had pulled a gun on Bryan Jones, and she denied that defendant threatened her not to testify.
Pauline Jones, aged 17, testified that on September 27, 2008, she lived with her father, Bryan Jones, and she called 911 twice that day. The first time, her father told her to call because someone had a gun. She had seen defendant arguing with her father just before then. She remembered seeing defendant with a gun in his pocket but did not remember him taking it out. She did not remember what defendant said.
In the transcript of her first 911 call, the accuracy of which is not challenged on appeal, Pauline Jones stated "Tony Johnson" came to the house with a gun and threatened to shoot her father, then he left. He had his hand on the gun. He said he would beat her father up "and that he would come back later so he wouldn't have to do it in front of my neighbor, and he said that he would shoot him."
After that first call, Pauline Jones watched television and then heard shouting and heard defendant telling her father "I thought we were friends or something like that." Her father told her to call 911 again, which she did, and she told the dispatcher that defendant had a gun, although she testified she did not see a gun.
Bryan Jones testified he did not remember the day in question, did not remember arguing with defendant, did not remember seeing a gun, and did not remember making statements to a peace officer or to an investigator. He testified he was scared to testify because "some people came over [to] my house and shot it up[.]"
Bryan Jones made a rude gesture to the court clerk while taking his oath. Outside the presence of the jury, the trial court remanded him to jail for contempt of court. The next day, the trial court explained to the jury what had happened, and admonished them not to ascribe Bryan Jones's conduct to the parties.
When his testimony resumed, Bryan Jones denied he had testified he was scared to testify, and said he did not know why he had gestured in court, but was directing the gesture at defendant because "I wish I wasn't here." He also testified his house had been shot up for reasons unrelated to defendant. He denied remembering details about his criminal history.
Tianha Woodruff, aged 14, testified defendant was her uncle, and on September 27, 2008, she lived with her mother, Cynthia Woodruff, and her siblings. She claimed not to remember defendant coming over that morning, or talking to the police, but later remembered defendant did come over and that there were a lot of people in her front yard. She remembered the police asking her about a gun found in her bedroom, and she said she did not know about it.
Cynthia Woodruff testified defendant was her younger brother. On the morning of September 27, 2008, her daughter Tianha called and told her to come home, and might have said that defendant and his son were there. When she arrived home, there were about 30 people there, and defendant told her he had argued with Bryan Jones earlier that morning. She remembered calling the police at defendant's request, but not what she told the police. She testified on direct examination that she did not remember signing a notarized letter about what happened, but admitted on cross-examination that she recognized the letter and had signed it under oath. In the letter, she stated she had been threatened by the Rhineharts, but she testified it was actually Bryan Jones who had called her, though she could hear the Rhineharts in the background, and testified Jones simply asked her where defendant was. She had been brought to court in handcuffs after investigators used a ruse to get her to come out of her house. Gail Rhinehart, her best friend, told her defendant did not do or start anything. After walking back from the prosecutor's office with Bryan Jones, Cynthia Woodruff heard Bryan Jones say he wanted to change his statement because "This is going too far" and "we're family, and this is all crazy[.]"
After the above confusing testimony, peace officers testified to statements the witnesses had made before trial.
Patrick Mulligan, an experienced officer with the City of Sacramento Police Department, testified that shortly after 10:00 a.m. on September 27, 2008, he and his partner, Officer Michael Peirsol, went to Bryan Jones's house and took his statement. Jones said that he had been visiting his neighbor, "old Mrs. Rhinehart," when Gail Rhinehart arrived with defendant, who parked "on old Mrs. Rhinehart's lawn and he was acting all crazy." An argument ensued, and defendant "pulled out a large chrome revolver" from the car, left the property, returned with his son, and threatened to shoot Jones. Jones did not report that defendant pointed the gun at him. Jones ran into his house, and defendant's son broke part of the screen door to get at him, stating he was going to shoot Jones. Jones told the officer he saw defendant's son punch Gail Rhinehart in the face. Officer Mulligan saw that the screen door was damaged, consistent with Jones's report. Jones said he saw a gun in defendant's waistband as defendant and his son threatened "to shoot him and shoot his house." Jones told Officer Mulligan the argument started because "Nobody tells Tony Johnson, Senior, what to do." Jones also told Officer Mulligan that he would not testify against the Johnsons.
Officer Peirsol testified that he spoke with Gail Rhinehart that morning. She told him that after Bryan Jones and defendant began to argue, defendant retrieved a pistol from under the glove box and threatened to kill Jones, with the pistol "[p]ointed at Bryan." Defendant left, but returned with his son and a third man, Michael Bailey, and they chased Jones toward his house. When she told them to stop, defendant's son "socked her in the mouth."
Gail Rhinehart's statement to Officer Peirsol was the only direct evidence that defendant pointed a gun at Jones.
Former peace officer William Montague, who had worked as an investigator for the district attorney's office, testified that he interviewed Bryan Jones on June 22, 2009. Jones told him defendant had said he "oughta just shoot [my] punk ass. . . . [He] oughta just blow [me] away." Jones said he was afraid of defendant and did not sleep at home.
On the same day he spoke with Bryan Jones, Montague spoke with Gail Rhinehart, who told him that once defendant had been released from jail, she began receiving threats, and that defendant had offered her money either not to testify or not to say there was a gun involved. On another occasion, defendant came to her house with two "guys" and "wanted her to sign a letter stating what happened." Because she was scared, she signed the letter, and they took her to a notary's office where the letter was notarized. Defendant paid the notary's fee. In another telephone call, defendant asked her not to testify, and to write another letter stating she did not see a gun "and that, if she did, that it would be all over with and they could be friends again and he wouldn't have to spend time in jail." Because she was scared, she also wrote that second letter.
Officer Jason Nollette testified that he saw defendant come out of Cynthia Woodruff's house, and searched and handcuffed him. After defendant's son was detained, Officer Nollette's partner found a Ruger .357 Magnum in Woodruff's house. Officer Jason Start testified that Cynthia Woodruff gave him permission to search her house, and he found the Ruger, loaded, in Tianha Woodruff's bedroom.
Derrick Greenwood, a prosecution investigator, testified that bench warrants were issued for Gail Rhinehart, Bryan Jones, Pauline Jones, Cynthia Woodruff and Tianha Woodruff. All five were brought to court, but only Gail Rhinehart was booked into jail, because she "was a bit flippant and evasive and vague" when asked questions about her location and availability.
Jackie Woodruff, defendant's nephew, lived with his mother, Cynthia Woodruff. He claimed ownership of the Ruger handgun, which he put under his sister's mattress. He also wrote a statement because he did not want defendant to get in trouble, because it was not defendant's gun. He had the statement notarized on October 16, 2008, and he testified that nobody asked him to notarize it.
Alvina Rhinehart testified that Bryan Jones began the argument by asking defendant why he had parked on her lawn. She heard the men cursing, but never heard defendant threaten to shoot Jones, and she never saw defendant point a gun at anyone. Defendant drove off, but came back soon after with a second car with two people in it. She saw two "young fellas" rushing toward Jones's house and went over to see what was happening. She did not see defendant with a gun. After she called out to tell the men not to do "that," defendant's son came toward her as if to hit her, and defendant stopped him. She testified her daughter Gail had a drug problem and was sometimes untruthful.
Reggie Alexander testified that he and Eddie Simmons took Gail Rhinehart to notarize her statement, but did not coerce her into writing it or notarizing it. He testified she did not have a reputation for truthfulness.
Tamra Owens, defendant's wife, testified that she spoke to Gail Rhinehart, who wanted to write a letter in April 2009 but Owens did not force her to. Owens testified Gail Rhinehart had a reputation as a liar and was "a drug addict and an alcoholic, and she's a violent, violent female."
Eddie Simmons, Gail Rhinehart's "back and forth" boyfriend, testified he took her to notarize a letter, but he had not forced her to write it or notarize it. She told him she lied to the police because she was upset about having been hit in the face. He also testified she had a poor reputation for honesty and had stabbed him in the leg, beaten him with a belt and "broke out my windows in my house. . . . One minute she [loves] me to death; the next minute she wants to kill me."
Michele Miller, a defense investigator, testified Pauline Jones and Bryan Jones both told her they had not seen a gun that day. However, Bryan Jones told her over the telephone that "he had been scared and had had threats and danger to his life" and he did not stay at home.
The notary testified Cynthia Woodruff and Jackie Woodruff had him notarize documents on October 16, 2008, but because Gail Rhinehart did not have identification, she had to have two witnesses attest to her identity when he notarized her letter on October 18, 2008.
The parties stipulated that defendant had a prior felony conviction.
The defense argued that Gail Rhinehart and Bryan Jones were lying. The People argued they told the truth the day of the incident, but were coerced and did not testify truthfully at trial.
The jury convicted defendant of assault with a firearm and possession by a felon of a firearm, but acquitted him of a count alleging criminal threats. The jury convicted defendant's son of two simple assaults. We previously dismissed an appeal by defendant's son. (People v. Johnson (Oct. 7, 2010, C064971) [app. dism.].) Defendant later pleaded no contest in three drunk driving cases, the facts of which are not relevant in this appeal. The trial court sentenced defendant to prison for a total of eight years.
Defendant contends the evidence shows he brandished a gun, but not that he committed assault with a firearm. He contends the only evidence that he pointed the gun at Bryan Jones was "Rhinehart's single repudiated statement" to Officer Peirsol.
Although the Attorney General contests the point, for purposes of this appeal we accept defendant's premise that he had to point the gun towards Jones to be convicted of assault with a firearm. (See People v. Flores (2007) 157 Cal.App.4th 216, 220-221 ["Felony assault requires proof the perpetrator committed 'an act . . . that by its nature would directly and probably result in the application of force to a person'"]; People v. Raviart (2001) 93 Cal.App.4th 258, 263-264 [gun can be pointed toward, but not necessary directly at the other person].) However, we agree with the Attorney General that substantial evidence supports defendant's conviction.
"We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense." (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.) "Evidence is sufficient to support a conviction only if . . . it '"reasonably inspires confidence"' [citation], and is 'credible and of solid value.'" (People v. Raley (1992) 2 Cal.4th 870, 891.)
Officer Peirsol testified that Gail Rhinehart told him defendant pointed the gun at Bryan Jones and threatened to kill him. There is ample basis to find that Rhinehart feigned her loss of memory, and defendant does not dispute that this statement was admissible, as an inconsistent statement, for the truth of the matter asserted. (Evid. Code § 1235; see People v. Gunder (2007) 151 Cal.App.4th 412, 418-419.)
It is true, as defendant states, that no other witness, either before or at trial, described seeing defendant point the gun, although there was ample corroborating evidence that defendant had a gun and that he threatened Bryan Jones. It is also true that several witnesses testified that Gail Rhinehart had credibility problems, and that before trial she signed a notarized document repudiating her statement to Officer Peirsol, and that she told her former boyfriend she had lied. However, there was also evidence that she had been threatened, and had denied her statement under coercion.
Defendant argues that because no other witness corroborated Rhinehart's statement, because Rhinehart disavowed her statement, and because of her credibility problems, her statement "is not sufficiently reliable such that any rational juror could rely on it."
We disagree with defendant. All of the factors regarding Rhinehart's credibility were before the jury, which impliedly concluded Rhinehart's fresh statement to Officer Peirsol was accurate, and that her retraction of that statement was either the product of coercion or her desire not to get defendant in trouble. The fact she repudiated her statement does not mean it cannot provide substantial evidence for the matter asserted. (Accord, People v. Cuevas (1995) 12 Cal.4th 252, 261-275 [overruling former rule that a witness's out-of-court identification was insufficient, absent corroboration, in part noting that the former rule "conflicts with the substantial evidence test"].)
Although the jury could have credited the evidence that Rhinehart lied to Officer Peirsol because she was angry after being hit, the jury also could rationally conclude that she was telling the truth when she spoke with him. Accordingly, we reject defendant's no-substantial-evidence claim.
Defendant contends the trial court did not adequately respond to jury questions regarding the instruction on the assault charge, causing prejudice. We disagree.
The trial court defined assault with a firearm by using a pattern instruction, CALCRIM No. 875, in part as follows:
"Each defendant is charged in Count 1 with assault with a firearm, to wit, a revolver. [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; and, [¶] 2. The defendant did that act willfully; and, [¶] 3. When the person -- when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and, [¶] 4. When the defendant acted, he had the present ability to apply force with a firearm to a person. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force or apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted. [¶] No one needs to actually have been injured by the defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was." (Italics in original.)
During deliberations, the jury asked the trial court to "Clarify 'application of force' # 875 ([explanation] of terms)" and "Clarify entire # 875 of Jury Instructions." The jury indicated the questions pertained to defendant's case, not his son's case, and asked whether "the entire case is thrown out" if the jury was not able to decide on one count.
The trial court consulted with the prosecutor, co-defendant's counsel, and stand-in counsel for defendant's counsel, who was ill, and all counsel agreed on the responses. After telling the jury it could return verdicts on less than all counts and that would not result in the entire case being thrown out, the trial court answered the jury's substantive requests. In response to the request to clarify "application of force," the trial court stated: "The instruction sets forth the law regarding the application of force: what the People must prove is that in an assault with a firearm there was demonstrated a present ability to apply such force but does not require that such force was actually applied." In response to the request to clarify CALCRIM No. 875, the trial court stated: "The attorneys are willing to provide you with a further clarification if you can assist them by indicating what other part or parts of the instruction are the source of confusion."
The jury did not request any further clarification before returning its verdicts.
On appeal, defendant contends the trial court's responses were not adequate. As the Attorney General points out, because defense counsel agreed to those responses, defendant has forfeited the contention that they were inadequate. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 (Rodrigues).)
Defendant relies on the fallback position that defense counsel's concurrence in the responses reflects incompetence of counsel. To establish incompetence of counsel, a defendant must show both that trial counsel's actions fell below objective professional norms, and that but for counsel's failings, it is reasonably probable that a better result would have been achieved at trial. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218; People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467.) Defendant can show neither on this record.
Defendant speculates that the jury was confused about whether defendant had to have pointed the gun at Jones in order to be guilty of assault with a firearm, and asserts without citation to authority that "competent counsel with knowledge of the facts of the case would have requested the court explain that the firearm must be involved in the application of force, either by pointing, firing or clubbing." Defendant also asserts that the attorney standing in for trial counsel either failed to consult with trial counsel or that trial counsel improperly agreed with the proposed responses.
We do not agree that trial counsel should have concluded the jury was confused in the manner posited by appellate counsel. In closing argument, the prosecutor emphasized the evidence that defendant threatened Jones while "pointing the gun" at him. Defendant's counsel argued defendant never threatened anyone, that Rhinehart lacked credibility and lied because she had been hit in the mouth, and that Bryan Jones had never said defendant pulled the gun on him. Defense counsel argued "it can't just be that somebody saw a gun in a waistband" because that would not be "an act with a firearm that by its nature would directly and probably result in the application of force. That's a really fancy way of [saying] he had to [have] had the direct ability to cause force. Well, how do you do that with a gun? It has to be pointed at somebody. Duh." In rebuttal, the prosecutor again emphasized Rhinehart's statement that defendant threatened Jones while pointing the gun at him, and distinguished the evidence of a second incident that day, where defendant did not take the gun out of his pocket.
Defendant states these arguments "somewhat addressed the relevant issue" but complains they were "not consistent and they did not remedy the [jury's] confusion." We disagree. The parties were clear in their interpretations; therefore, we cannot say trial counsel acted below professional norms in concurring with the trial court's responses, instead of surmising that the jury was confused about whether it had to find defendant pointed his gun at Jones.
Further, defendant's argument for prejudice rests in part on his assertion that no substantial evidence supports the verdict, which we have already rejected. He also asserts, without citation to authority, that in the absence of clarification the jurors would "likely interpret 'assault with a firearm' as any assault where a firearm is present, or used, but not necessarily in the application of force." Again we disagree. The jury was instructed that it had to find defendant "did an act with a firearm that by its nature would directly and probably result in the application of force to a person," which would preclude a conviction if the firearm was merely "present" or was "used, but not necessarily in the application of force" as defendant asserts. Therefore we see no likely prejudice from the trial court's response, which clarified that the jury had to find defendant had the present ability to apply force, but not that he actually applied force, and which invited the jury to be more specific about any other questions it had. If, as defendant speculates on appeal, the jury was concerned about whether "pointing" was required, it is more likely the jury would have asked the judge to clarify that specific point, rather than convict defendant in the absence of clarification. Because the jury did not narrow its request, we presume the trial court's response regarding application of force was adequate. We note that the jury requests at issue on appeal were in this jury's seventh note to the judge, showing that this jury was not shy about communicating its wishes to the court.
Accordingly, we reject the contention that trial counsel or stand-in counsel or both were incompetent by agreeing to the trial court's answers to the jury's questions. Therefore, the contention that the trial court's responses were inadequate is forfeited. (Rodrigues, supra, 8 Cal.4th at p. 1193.)
Further, we reject the contention of error on the merits. If the jury desires "to be informed on any point of law arising in the case . . . the information required must be given in the presence of, or after notice to," the parties. (Pen. Code, § 1138.) But a trial court has discretion when responding to a jury's request. "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky." (People v. Beardslee (1991) 53 Cal.3d 68, 97; see People v. Montero (2007) 155 Cal.App.4th 1170, 1178-1179.)
Defendant's contention is that the trial court's responses allowed the jury to convict defendant if it found he "rushed at Mr. Jones after tucking a firearm in his clothing." He reasons that the instruction requiring the jury to find defendant "'did an act with a firearm that by its nature would directly and probably result in the application of force to a person'" could be interpreted to cover the situation where defendant rushed at Jones, an act that could result in the application of force to Jones, while defendant was "with a firearm," that is, while he was in possession of a firearm. He acknowledges that this is not the meaning of the instruction, but contends "many (if not most) people do not have that discriminating a grasp on grammar." In the reply brief, he contends the trial court's response "advocated for conviction by redirecting the jury's attention to an element on which there was no serious dispute and away from the element on which they were confused and, if properly applied, would have resulted in acquittal."
We must presume, however, that the jury was comprised of persons capable of reading and understanding instructions. (People v. Kegler (1987) 197 Cal.App.3d 72, 80; People v. Powell (1960) 186 Cal.App.2d 54, 59.) Moreover, the request for clarification did not indicate that the jurors misunderstood the pattern instruction in the manner posited on appeal. In addition, the trial court's responses clarified one aspect of the pattern instruction, and invited the jury to narrow its request for clarification, but the jury asked no further questions, showing that the trial court's answer was sufficient. On this record we cannot say the trial court's clarification response was an abuse of discretion.
Both because the claim is forfeited and because it lacks merit, we reject defendant's contention that the trial court did not adequately answer the jury's clarification request.
Defendant contends the trial court should have stricken two "on-bail" enhancements (People v. Meloney (2003) 30 Cal.4th 1145, 1148-1149 (Meloney)), instead of running them concurrently. The Attorney General agrees the enhancements should not have been imposed concurrently, but seeks a remand for resentencing. We agree with the Attorney General.
After defendant posted bail in the felony assault case, he was charged in three separate cases with drunk driving. In the second case, the information alleged two separate on-bail enhancements under Penal Code section 12022.1. In the third case, another on-bail enhancement was alleged. Defendant admitted all of the charges in the drunk driving cases, including all of the on-bail enhancements. His admissions were not pursuant to a plea bargain.
The enhancement statute provides for an additional two years in prison "which shall be served consecutive to any other term imposed by the court." (Pen. Code, § 12022.1, subd. (b).)
The probation department recommended two years for each on-bail enhancement. The prosecutor argued for that result, pointing out that three separate on-bail enhancements had been pled and proven. The defense argued two and only two enhancement terms could be imposed, and also invited the trial court to exercise its discretion under Penal Code section 1385, providing for dismissals "in furtherance of justice." (See Meloney, supra, 30 Cal.4th at pp. 1154-1156 [trial court may strike an on-bail enhancement].)
The trial court stated that, based on defendant's early admission of wrongdoing, "the ends of justice require that, if I do anything, I at least run those terms, then, concurrent. And that's what I'm going to do with regard to the O.R. bail enhancements, okay, to save you a maximum exposure of 4 years or the worst case 2 years, based on what your attorney has indicated. [¶] So on each of those O.R. or bail, I'm going to run those 2 years concurrent, okay, with regard to that." After the parties discussed the fact that two of the driving under the influence (DUI) cases had never been consolidated, and clarified various aspects of the sentence, the trial court reiterated that two of the three on-bail enhancements would be run concurrently. The court stated "in fairness to your client, he did the right thing, he admitted at an early stage. And I at least think with the support that he's got and with what he did, it should at least run concurrent with regard to that."
The abstract of judgment reflects that both enhancements alleged in case No. 09F08416 were imposed concurrently.
We agree with the parties that the trial court could not run the enhancements concurrently. (Pen. Code, § 12022.1, subd. (b).) The parties, however, disagree regarding the appropriate remedy. Defendant contends the trial court's reasons for imposing the enhancements concurrently equate to reasons for dismissing the enhancements in the interests of justice under Penal Code section 1385, and asks this court to strike them, rather than remand for resentencing. We decline to do so, due to the procedural restrictions on dismissals under Penal Code section 1385.
Although the trial court stated on the record that defendant did not deserve more than two years for the on-bail enhancements, its reasons were not entered in the minutes. Penal Code section 1385, subdivision (a) "requires that the reasons for the dismissal be set forth 'in an order entered upon the minutes.'" (People v. Bonnetta (2009) 46 Cal.4th 143, 146 (Bonnetta).) In Bonnetta, the California Supreme Court emphasized that the failure to enter the reasons for a dismissal in the minutes is not subject to harmless error analysis. (Id. at pp. 149-152.) "[A]lthough a rule might be stated that would allow the reviewing court to uphold the trial court's order if, but only if, it finds the trial court's reasons to be clearly articulated, or if any and all of the reasons mentioned would justify dismissal, such a rule, while reducing the trial court's burden, would increase that of the appellate courts without eliminating the possibility the reviewing court would misidentify the specific reason or reasons for the trial court's ruling." (Id. at p. 152.) The court remanded to allow the trial court either to enter its reasons for the dismissal in the minutes, or to conduct a new sentencing hearing: "[A]s the trial court's order of dismissal is ineffective, the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason. In such cases, the court must also have the power to take action such as reconvening the sentencing hearing or allowing a defendant to withdraw a plea entered on the understanding a count or an enhancement would be dismissed." (Id. at p. 153.)
If the trial court in this case had dismissed the on-bail enhancements, we could remand for the trial court to enter its reasons in the minutes or to conduct a new sentencing hearing. But, in light of Bonnetta, supra, 46 Cal.4th 143, it would be imprudent to substitute a dismissal order on appeal for a concurrent sentencing choice made by the trial court, where the reasons for that choice were not entered in the minutes.
Accordingly, we remand for resentencing.
Defendant contends, and the Attorney General agrees, that the abstract of judgment contains errors. In case No. 08F10037, the restitution fines were $1,600, not $2,400. Only one booking fee, one jail classification fee, and one presentence report fee were imposed. And in case No. 08F08054, there is a typographical error in the statutory reference to possession of a firearm by a felon, which reads "12022.1(a)(1)" but which should read "12021(a)(1)." On remand, the trial court must ensure the new abstract accurately captures all parts of defendant's sentence. (See People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 389-390.)
The judgment is affirmed and the cause is remanded for resentencing consistent with this opinion.
HULL , Acting P. J.
BUTZ , J.
© 1992-2011 VersusLaw Inc.