California Court of Appeals, Second District, Fifth Division
September 11, 2014
THE PEOPLE, Plaintiff and Respondent,
DANIEL SAUCEDO VENEGAS, Defendant and Appellant.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA120194, Patrick Connolly, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Stephen B. Bedrick, 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, Scott A. Taryle and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
MINK, J. [*]
Appellant Daniel Saucedo Venegas was convicted, following a jury trial, of one count of shooting at an inhabited dwelling in violation of Penal Code section 246, one count of shooting from a motor vehicle in violation of former section 12034, subdivision (c), one count of assault on a peace officer in violation of section 245, subdivision (c), and one count of being an accessory after the fact in violation of section 32. The jury found true the allegations that the shootings and assault were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(B) and (4) and that a principal was armed with a handgun in the commission of the shootings within the meaning of section 12022, subdivision (a)(1). The trial court sentenced appellant to a total term of 15 years to life in state prison for the section 246 conviction, pursuant to section 186.22, subdivision (b)(4)(B). The trial court also imposed concurrent terms of seven years for the former section 12034 conviction, five years for the section 245 conviction, and three years for the section 32 conviction.
Appellant appeals from the judgment of conviction, contending the trial court erred in ruling it lacked jurisdiction to dismiss any part of count 1 and further contending the prosecutor committed misconduct in offering only a “package deal” plea bargain offer. Appellant also contends the court erred in refusing to reappoint counsel for co-defendant Michael Estrada and further contends there is insufficient evidence to support the gang allegation. We hold that the trial court did have the authority to strike or dismiss the section 186.22, subdivision (b)(4), allegation in count 1, but affirm the judgment in all other respects. We reverse appellant’s conviction, however, and remand
the matter for the trial court to consider appellant’s motion to enter an open plea. If the trial court denies that motion, appellant’s conviction is ordered reinstated.
On September 27, 2011, about 10:30 a.m., Sylvia Lozano heard approximately three gunshots. Patricia Torres, who lived two houses away from Lozano on Indigo Street in Compton, heard five or six gunshots. Torres looked out her front window and saw a bald male who appeared to be “Latino” in front of Lozano’s gate. He ran away, toward Tamarind. Lozano discovered bullet holes in a wall of her house and called 911.
Los Angeles County Sheriff’s Deputy John Orozco and his partner Deputy Robles were in the vicinity, heard gunshots, and saw two vehicles travelling on Indigo at a high rate of speed. One vehicle was gold, the other green. Both ran the stop sign at the intersection, narrowly missing a collision with the deputies’ car. Deputy Orozco saw that the driver of the gold car was appellant and the driver of the green car was co-defendant Estrada. Neither car had any passengers.
The deputies followed Estrada in the green car, which accelerated, ran a stop sign and turned onto Tamarind. There, the car stopped and Estrada threw an object out of the car. Luis Madera and Erika Contreras observed the object being thrown. Madera alerted Sheriff’s Deputy Alfonso Rodriguez to the object. Deputy Rodriguez discovered that the object was a gun, a Glock.
Estrada turned onto Cocoa, and the deputies followed. Appellant re-appeared, driving the gold car toward the green car and the patrol car. After appellant passed the green car, he swerved toward the patrol car. Deputy Robles also swerved, and was able to avoid a collision. The deputies continued to follow Estrada in the green car as he drove through stop signs and traveled on the wrong side of the street. Estrada eventually returned to Tamarind with the deputies following. There, appellant reappeared in the gold car and drove head on into the patrol car, disabling it. The deputies were able to arrest appellant.
Sheriff’s Deputies Jeff Lohmann and Saul Saucedo came to the crash scene, then drove down Caldwell following the last known direction of Estrada in the green car. The officers found the green car, a Mercury Sable, on East Caldwell. No one was inside. A bullet casing was visible on the windshield. A containment was set up around the area.
Deputies learned that Estrada was located inside the home of Patsy Thomas. After the house was surrounded, Estrada surrendered. Martha
Oviedo, who lived across the street from Thomas, confirmed that she had seen Estrada drive up in the green car earlier.
Sheriff’s Criminalist Manuel Munoz test fired the gun recovered from Tamarind Street and compared casings from that firing with casings recovered from the sidewalk in front of Lozano’s home and the windshield of the green car. All of the recovered casings were fired from the recovered gun. A bullet recovered from Lozano’s home had the general rifling characteristics that would be produced by being fired from the Glock, but was too deformed to be matched to the Glock.
A gunshot residue (“GSR”) test was performed on Estrada on the day of his arrest. Two particles in the sample collected were consistent with gunshot residue.
At trial, the prosecution presented evidence that appellant and Estrada were members of the Compton Varrio, Born Krazy Minded, 13 gang (“BKM”). Sheriff’s Investigator Joseph Sumner testified as an expert on the BKM gang. The Lozano house on Indigo Street was in territory previously claimed by the BKM gang before they were pushed out. They were trying to reclaim the area. Given a hypothetical based on the facts of this case, Investigator Sumner opined that the activities were done for the benefit of the BKM gang. Gangs often used two cars during a shooting, to facilitate the success of the shooting.
Appellant offered the testimony of Head Deputy Alternate Public Defender Armando Wood that in his experience in the Compton courthouse, the majority of shooting cases do not involve two cars.
Estrada testified on his own behalf. He admitted firing gunshots on Indigo Street, but claimed he was fired at first by two Hispanic men. He drove away. When he was stopped at a stop sign, Deputies Orozco and Robles pulled up next to him, got out of their car and pointed their guns at him. Estrada was afraid and drove away in fear. During his flight from the deputies, he noticed his childhood friend appellant driving past in a gold car. Estrada parked his car and went into the backyard of the Thomas house. Rick Thomas, a childhood friend, invited him inside. At some point, the police surrounded the house and Estrada surrendered.
1. Authority to strike gang allegation
Appellant was charged in count 1 of the information with shooting at an occupied dwelling, and it was alleged that the shooting was committed for the
benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(4). That subdivision provides that upon conviction of the underlying offense, the defendant will be sentenced to an indeterminate term of life in prison. From very early in this case, appellant sought a plea agreement which would provide a determinate sentence.
The prosecutor offered appellant and co-defendant Estrada a “package” plea agreement, which required both defendants to plead guilty in order for the offer to be effective. Under this agreement, appellant would have received a determinate term of 10 years in state prison. Estrada did not want to enter into the plea agreement, so appellant moved that he be allowed to enter a guilty plea to count 1 in the “hope” that the trial court would strike the section 186.22, subdivision (b)(4)(B), provision requiring a 15 year to life term and sentence him to a determinate term. The prosecutor opposed the motion, contending the court had no discretion to strike the allegation. The prosecutor relied on People v. Campos (2011) 196 Cal.App.4th 438 [126 Cal.Rptr.3d 274] (“Campos”) and People v. Jones (2009) 47 Cal.4th 566 [98 Cal.Rptr.3d 546, 213 P.3d 997] to support her contention.
The court responded as follows: “And the court did say that the court would consider it, if the court did have discretion in doing those things. And for reasons very similar to what [appellant’s trial counsel] has already stated, I think that without this being a reflection of what occurred, because, obviously, the court has not heard those facts and doesn’t know how egregious or if it is egregious at all, what the conduct was in this matter; but just out of a sense of fairness, the court said that it would consider it.” The reasons previously stated by appellant’s trial counsel were that appellant had wanted to enter into a plea agreement from the very beginning of the case, and was willing to take the sentence described by the prosecutor as part of the package plea.
The court added: “The court has not read these cases though, and I will read the cases. I do know the Campos case. I do not know the Jones case at all. [¶] And it is my expectation that it is going to state precisely what [the prosecutor] has said. And if that is the case, the court would not have the authority to strike, and that that discretion has been taken away, and the court cannot do anything. But I will read the cases and see if that is exactly what it does state. [¶] And so with that pending, we’re going to be moving forward.”
The trial court correctly understood Campos, supra, 196 Cal.App.4th 438. In that case, Division One of the Fourth District Court of Appeal held that a trial court’s discretion to strike section 186.22 sentencing allegations is controlled by section 186.22, subdivision (g), which provides, “Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence where the interests of justice would best be served....” The court found that section 186.22 allegations which impose an indeterminate life term are an alternate sentencing scheme, not an additional punishment for an enhancement. The court concluded that since subdivision (g) did not authorize trial courts to strike alternate sentencing schemes, trial courts had no authority to strike such schemes. (People v. Campos, supra, 196 Cal.App.4th at pp. 448-449.)
The court recognized that trial courts have authority under section 1385, subdivision (a), to dismiss sentencing allegations, but held that section 186.22, subdivision (g), provided clear legislative direction that section 1385, subdivision (a), did not apply to section 186.22 allegations. (People v. Campos, supra, 196 Cal.App.4th at pp. 450-452.) The court based its holding in large part on the Legislature’s decision to begin subdivision (g) with the phrase “[n]otwithstanding any other law.” The court characterized this phrase as a “‘term of art” [which] expresses a legislative intent “to have the specific statute control despite the existence of other law which might otherwise govern”’ [citation] and ‘declares the legislative intent to override all contrary law.’ [citation]." (196 Cal.App.4th at p. 452.) The court also reasoned that subdivision (g) controlled over section 1385 because “the specific statute prevails over the general statute” and “the later-enacted statute prevails over the earlier-enacted statute.” (Id. . ." (196 Cal.App.4th at p. 453.) Finally the court believed that using section 1385 to dismiss or strike gang allegations would render section 186.22, subdivision (g), “‘redundant and unnecessary’” or mere ‘meaningless surplusage’ and courts “do [not] construe statutory provisions so as to render them superfluous.' " (196 Cal.App.4th at p. 454.)
Appellant does not attack the reasoning of Campos, supra, 196 Cal.App.4th 438 in this appeal, apparently believing that it was settled law and such an argument would be futile in an intermediate appellate court. Instead, he argues that even if the trial court lacked authority to strike the gang
allegation, the court had the authority under section 1385 to dismiss the entirety of count 1. We nevertheless exercise our discretion to consider appellant’s claim, made in the trial court, that a trial court does have authority to strike a section 186.22, subdivision (b)(4), gang allegation.
We review conclusions of law de novo. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [76 Cal.Rptr.3d 250, 182 P.3d 579].) A "disposition that rests on an error of law constitutes an abuse of discretion.” (In re Charlisse C. (2008) 45 Cal.4th 145, 159 [84 Cal.Rptr.3d 597, 194 P.3d 330].)
We disagree with the holding of People v. Campos, supra, 196 Cal.App.4th 438. We hold that section 186.22, subdivision (g), does not contain “clear language” signaling the Legislature’s intent to eliminate a trial court’s authority under section 1385, subdivision (a), to strike factual sentencing allegations under section 186.22, subdivision (b), imposing an alternate sentencing scheme. That authority remains.
A trial court has authority under section 1385, subdivision (a), to strike factual allegations relevant to sentencing, including both enhancement allegations and allegations which support an alternate sentencing scheme. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 518, 527, 529-530 [53 Cal.Rptr.2d 789, 917 P.2d 628] [trial court has power to strike or dismiss three strike allegations; three strikes law is an alternate sentencing scheme].) The Legislature may eliminate a court’s power to strike or dismiss under section 1385, but “we will not interpret a statute as eliminating courts’ power under section 1385 ‘absent a clear legislative direction to the contrary.' " (13 Cal.4th at p. 518.) There is no such clear direction in section 186.22, subdivision (g).
Section 186.22, subdivision (g) begins with the phrase “[n]otwithstanding any other law.” This phrase in a statute is a term of art which signals the legislative intent that the statute control, override or displace contrary, conflicting or inconsistent law. (In re Greg F. (2012) 55 Cal.4th 393, 406 [146 Cal.Rptr.3d 272, 283 P.3d 1160] [contrary]; Arias v. Superior Court (2009) 46 Cal.4th 969, 983 [95 Cal.Rptr.3d 588, 209 P.3d 923] [conflicting]; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 524 [inconsistent].) Generally, when the Legislature has intended to eliminate the trial court’s section 1385, subdivision (a), power to dismiss or strike a factual sentencing allegation, it has done so directly and by using the word “notwithstanding” to contrast inconsistent propositions. There are numerous examples of this direct
limitation, including section 667.61, subdivision (g), which provides: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section.” That is not the case with section 186.22, subdivision (g).
Section 186.22, subdivision (g), does not directly mention section 1385, and does not prohibit any action otherwise permitted by section 1385. Rather, section 186.22, subdivision (g), like section 1385, gives the trial court power to strike. Subdivision (g) gives the court the power to strike the additional punishment imposed once certain section 186.22 enhancement allegations have been found true. Section 1385, subdivision (a), gives the trial court power to strike factual sentencing allegations (including enhancement allegations), or to dismiss them. Dismissing or striking a factual sentencing allegation and striking the additional or alternate punishment when the enhancement allegation is found to be true are two different things. (See In re Pacheco (2007) 155 Cal.App.4th 1439, 1444 [66 Cal.Rptr.3d 799] ["Having decided to afford leniency in this case, the sentencing court had two options. It could either strike the enhancement allegation in its entirety or strike the additional three-year punishment for the enhancement”].) Thus, the two options are compatible with each.
The trial court’s power to dismiss or strike factual sentencing allegations under section 1385 is not contrary to, in conflict with, or inconsistent with the court’s power to strike the additional punishment for the allegation under section 186.22, subdivision (g). Thus, use of the phrase “[n]otwithstanding any other law” in section 186.22, subdivision (g), is not “clear language” (People v. Fritz (1985) 40 Cal.3d 227, 230 [219 Cal.Rptr. 460, 707 P.2d 833]) signaling the Legislature’s intent to eliminate a trial court’s section 1385, subdivision (a), authority to strike a factual sentencing allegation made pursuant to section 186.22, subdivision (b).
We recognize that subdivision (c)(1) of section 1385 gives a trial court the power to strike the additional or alternate punishment for a factual sentencing allegation if the court has the power to dismiss or strike the allegation under section 1385, subdivision (a). As the court in Campos pointed out, we do not construe statutes in a manner to make them redundant. (People v. Campos, supra, 196 Cal.App.4th at pp. 454-455.) An examination of legislative history shows, however, that section 186.22, subdivision (g), was not redundant when it was enacted.
Section 1385 was enacted in 1872. (People v. Bonnetta (2009) 46 Cal.4th 143, 148 [92 Cal.Rptr.3d 370, 205 P.3d 279].) Subdivision (c) of section 1385 was not enacted until 2000 and was added by Statutes 2000, chapter 689, section 3, page 4558, enacting Assembly Bill No. 1808 (1999–2000 Reg. Sess.). (Historical and Statutory Notes, 51A pt. 1 West’s Ann. Pen.Code (2011 ed.) foll. § 1385, p. 287.) Section 186.22, subdivision (g), was enacted as part of the original legislation in 1989 and initially was codified as section 186.22, subdivision (d). (Stats.1989, ch. 930, § 5.1, pp. 3253–3254; 47 West’s Ann. Pen. Code (1999 ed.) amend. history foll. § 186.22, p. 465.)
Thus, when section 186.22 was enacted, section 1385 did not include subdivision (c) and did not give the trial court authority to strike the additional or alternate punishment for a factual sentencing allegation. Section 186.22. subdivision (g) (initially codified as section 186.22, subdivision (d)) complemented, rather than displaced, section 1385, subdivision (a), by granting the trial court such additional power.
The trial court in this matter understandably was unaware that it had the authority under section 1385 to strike the section 186.22, subdivision (b)(4), allegation in this matter. Nevertheless, a trial court’s failure to exercise discretion is an abuse of discretion, even when based on a mistaken belief it lacked discretion. (People v. Orabuena (2004) 116 Cal.App.4th 84, 99-100 [10 Cal.Rptr.3d 99].) We cannot say the trial court’s mistaken belief was harmless.
The court indicated before trial that it would consider striking the allegation if it had the authority to do so. After trial, the court indicated that it still believed that a low sentence was appropriate. The court stated: “Mr. Venegas, I have made representations in the past that based upon the fact that even prior to the preliminary hearing I believe that you wished to accept the People’s offer which was a determinate term of I believe it was 10 years.... And that based upon let’s call it the reluctance of Mr. Estrada to accept any deal in his matter, you were unable to accept that offer which was a package offer. [¶] And it is my intent still, but I will hear from you and I will hear from Ms. Hardiman also, to sentence you to the lowest amount of time that I can. That is still a life term unfortunately, but that is still my intent.” The court did in fact sentence appellant to what it believed was the lowest possible term. The court’s statement that “unfortunately” the lowest term was a life term is a strong indication that the court still believed a determinate term could be appropriate. The matter must be remanded to permit the trial court to exercise its discretion.
Accordingly, we vacate appellant’s conviction and remand the matter to the trial court to consider appellant’s motion to enter an open plea. If the court
denies this motion, the conviction is ordered reinstated. The trial court should then exercise it discretion and resentence appellant.
Appellant’s conviction is reversed and this matter is remanded to the trial court for consideration of appellant’s motion to enter an open plea. If the trial court denies that motion, appellant’s conviction is ordered reinstated. The trial court may then resentence appellant. The judgment is affirmed in all other respects.
Mosk, J., concurred.
TURNER, P. J., Concurring and Dissenting.
I concur except for the conditional reversal. I would affirm. In my view, the trial court had no authority to strike the Penal Code section 186.22, subdivision (b)(4) sentencing scheme. (People v. Briceno (2004) 34 Cal.4th 451, 460 [20 Cal.Rptr.3d 418, 99 P.3d 1007];
People v. Campos (2011) 196 Cal.App.4th 438, 446-454 [126 Cal.Rptr.3d 274].) Finally, it is unlikely the trial court would have taken such an unusual action. This case involves an aggravated gang shooting and efforts to injure deputy sheriffs during a high-speed pursuit. Defendant admitted he had been a gang member for eight years. Any error was harmless under any standard of reversible error. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 104 S.Ct. 2052]; Chapman v. California (1968) 396 U.S. 18, 22 [17 L.Ed.2d 705, 87 S.Ct. 824]; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)