California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of Imperial County, Super. Ct. No. JCF25950 Christopher J. Plourd, Judge.
[Copyrighted Material Omitted]
Buckley & Buckley and Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Juan Jose Vizcarra challenges the sentence imposed on him following his prior appeal. In this gang-related and procedurally complicated stabbing case─which returns to this court following a nonpublished opinion in Vizcarra's prior appeal in People v. Vizcarra (May 22, 2013, D061878) (Vizcarra I) and the resulting remand to the trial court with directions to conduct a limited resentencing─a jury convicted Vizcarra, who was a member of the Chicali Brazas (Chicali) criminal street gang in Brawley, of two felonies: (1) assaulting Jesus Zermeno with a deadly weapon, a knife (count 2: Pen. Code, § 245, subd. (a)(1)) (undesignated statutory references will be to the Penal Code); and (2) attempting to dissuade a witness, Zermeno (count 3: § 136.1, subd. (a)(2), hereafter section 136.1(a)(2)). The jury found Vizcarra not guilty of attempting to willfully, deliberately, and with premeditation murder Zermeno (§§ 187, subd. (a), 664) as charged in count 1.
In addition, the jury found to be true a count 2 allegation that Vizcarra committed the assault with a deadly weapon for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the court found to be true a count 2 allegation that Vizcarra had suffered a strike prior (§ 667, subds. (b)-(i)).
The court originally sentenced Vizcarra in this case to an aggregate prison term of 15 years consisting of (1) the upper term of four years for his count 2 conviction of assault with a deadly weapon, doubled to eight years under the Three Strikes law as a result of the court's true finding on the count 2 strike prior allegation; plus (2) a consecutive term of two years for his count 3 conviction of attempting to dissuade a victim or witness, which the court did not double under the Three Strikes law; plus (3) a consecutive five-year term for the gang enhancement.
Before we set forth Vizcarra's contentions in this new appeal, and in order to provide necessary procedural context, we must briefly discuss his first appeal and the limited resentencing hearing that we directed the trial court to conduct on remand.
A. Vizcarra's First Appeal (Vizcarra I, D061878)
In Vizcarra I, Vizcarra challenged on various grounds his count 3 conviction (dissuading a witness) and his sentence. As pertinent here, the Attorney General responded by arguing that Vizcarra's total prison term sentence should be increased by seven years-from 15 years to 22 years-because (1) the court was required, but failed, to double to four years under the Three Strikes law the two-year sentence it imposed for Vizcarra's count 3 conviction of attempting to dissuade a victim or witness, and (2) the court also was required, but failed, to impose a consecutive five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1) (hereafter section 667(a)(1)) (discussed, post).
In his reply brief, Vizcarra acknowledged that the court erroneously failed to double under the Three Strikes law the two-year sentence it imposed for his count 3 conviction. However, relying on People v. Henderson (1963) 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677] (Henderson) (and other legal authorities), Vizcarra asserted that, "[u]nder California law, after appeal a defendant may not receive a greater sentence on [the] charges for which he was tried in the first trial." He also asserted that "California double jeopardy and due process principles generally forbid such an increased sentence." Thus, Vizcarra claimed, his sentence could not be increased lawfully following his appeal because his original 15-year aggregate sentence was "within the range of permissible sentences" the trial court was legally authorized to impose, and the court "could have reached a legal sentence of  years, even with the correction of the alleged errors."
In this court's unpublished opinion in Vizcarra I, rejecting Vizcarra's claims, we concluded that the trial court erred and rendered an unauthorized sentence by (1) failing to impose a mandatory five-year enhancement under section 667(a)(1), and (2) failing to double under the Three Strikes law the two-year sentence it imposed for Vizcarra's count 3 conviction. Accordingly, we modified the judgment by ordering imposition of a consecutive five-year enhancement under section 667(a)(1), reversed the sentence as to count 3, and remanded this case "for resentencing subject to the court's exercise of its section 1385, subdivision (a) power to strike the prior conviction finding." In all other respects, we affirmed the judgment as modified.
This court thereafter denied Vizcarra's petition for rehearing. On August 21, 2013, the California Supreme Court denied his petition for review (People v. Vizcarra, S211630).
B. Resentencing on Remand
On remand in mid-January 2014, the trial court conducted a limited resentencing hearing in accordance with this court's directions in Vizcarra I. In the exercise of its discretion, the court denied Vizcarra's motion under section 1385, subdivision (a) (hereafter section 1385(a)) and People v. Superior Court (Romero)(1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628] (Romero) to strike his prior strike conviction, and it then imposed the new sentence. As to count 3, the court imposed the term of two years, doubled to four years under the Three Strikes law as a result of Vizcarra's strike prior. The court sentenced Vizcarra to an aggregate prison term of 22 years, consisting of his original 15-year sentence, plus the mandatory five-year enhancement under section 667(a)(1) that this court in Vizcarra I ordered imposed for his serious felony prior, plus the additional two years resulting from the doubling under the Three Strikes law of the original two-year term imposed as to count 3.
C. Vizcarra's Contentions
Vizcarra again appeals, raising two main contentions. First, he contends the seven-year increase in his aggregate prison sentencefrom 15 to 22 yearsfollowing his first appeal is illegal as a matter of law, and he asserts his 22-year sentence must be reduced to 15 years. Second, he contends the court abused its discretion in resentencing him on remand "by failing to complete a full sentencing analysis and by relying on improper sentencing considerations."
For reasons we shall explain, we reject these contentions and affirm the judgment. However, we remand the matter with directions to amend the new abstract of judgment to correct two clerical errors (discussed, post) the Attorney General has correctly pointed out.
Vizcarra, whose Chicali gang moniker was "Shorty, " stabbed Zermeno─who was affiliated with a rival street gang─twice in the ribs with a knife, causing him to suffer a collapsed lung. Zermeno was hospitalized for about two weeks. At the time of the assault, Vizcarra was accompanied by Jeffrey Ruiz, whose Chicali gang moniker was "Speedy" and who testified at trial that he saw Vizcarra stab Zermeno.
While in custody, Vizcarra made three phone calls: one to his fellow Chicali gang member, Fernando Flores, and the others to Chicali gang
associates Carlos Angulo and Walter Lopez. Specifically, in the first phone call, Vizcarra called Angulo. Vizcarra told Angulo: "Ask for [Zermeno], man. Find him, man. Do that favor for me, man, and tell him that when he goes to court to say, 'No.' You know what I mean?" Angulo replied, "Yes." After briefly discussing something else, Vizcarra told Angulo: "Hey, but-try to find that damn Jesus Zermeno, man. All right?" Angulo responded, "All right, then."
In the second phone call, Vizcarra called Lopez and asked him for a "favor." Vizcarra asked Lopez whether he knew Zermeno, and Lopez indicated he did not. Vizcarra explained, "Uh, well the fucker is saying... Supposedly, that he is snitching, man." Lopez said, "Really?" Lopez then told Vizcarra, "Wait, hold on, I'm going to write that shit down, man." Vizcarra spelled Zermeno's name for Lopez, who then said he would "see what's up." After informing Lopez that he (Vizcarra) was being charged with attempted murder, Vizcarra told Lopez: "That's why I want you to [stutters] do that favor for me, man." Lopez responded affirmatively. Vizcarra then said, "Find that fucker, man, " adding, "We got court on Monday, fool." Lopez replied, "All right, fool." Vizcarra then gave instructions to Lopez about what Zermeno should say in court: "And then, well, if you can get a hold of him before Monday it would be great, man. And just tell him that if he is going to go to court, man, to just say that it wasn't us. You know what I mean? That he should say, 'No-.'"
Interrupting Vizcarra, Lopez replied, "Yeah." Vizcarra added that Zermeno should say, "[I]t's the wrong people.'" Lopez indicated he would do this favor for Vizcarra.
In the third phone call, Vizcarra called Flores, whom he called "Flako." Vizcarra asked Flores whether he knew Zermeno, and Flores replied he did not. Vizcarra told Flores, "[I]f [Zermeno] goes to court he should say, 'No.' You know what I mean, man?" Flores replied, "Yes." Vizcarra added, "That it wasn't us, dog." Flores responded, "Yeah, I know. I know." Vizcarra further explained that he "already told [Lopez]" and that Lopez had written down Zermeno's name. Flores confirmed Zermeno's name and told Vizcarra he had written down Zermeno's name. Vizcarra then told Flores: "All right, dog. Just figure that shit out, dog. All right?... Do that favor for me, man." Flores reassured Vizcarra, saying, "Yeah, don't trip."
Zermeno, the victim in this case, testified for the prosecution that, on the night in question, two Hispanic men speaking in Spanish and brandishing knives ran towards him and one stabbed him twice in the ribs. At trial, Zermeno indicated that he did not know the identity of ...