Opinion
A jury found Joel Campos, Jr., guilty of three counts of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664);
On appeal Campos contends (1) the trial court erred by instructing the jury with CALCRIM No. 357 on adoptive admissions because his statement to police during a pretrial interview was an invocation of his constitutional right to remain silent, not an adoptive admission; (2) insufficient evidence supports his convictions of the attempted murders of Ricardo Rodriguez and his brother Clemente Rodriguez (hereafter, the Rodriguez brothers); (3) a one-year enhancement to his sentence for having served a prior prison term must be stricken; and (4) the abstract of judgment incorrectly states how the indeterminate sentences are to run concurrently and must be corrected to conform to the sentence pronounced by the trial court at the sentencing hearing.
Before oral argument, it appeared to us that the sentence imposed on one of the attempted murder counts might be unauthorized and that the trial court might have erroneously stricken certain enhancements. We therefore obtained supplemental briefing from the parties on these issues.
For reasons explained in the unpublished portion of this opinion, we affirm the convictions on all counts but reverse certain sentencing errors. In the published portion, we reverse the error regarding the imposition of a gang alternate penalty and remand the matter for resentencing.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting on May 5, 2006
On May 5, 2006, there was a driveby shooting at the trailer park where Campos’s family resided. One of the trailers hit by the bullets belonged to the Campos family. None of the witnesses interviewed by the police identified the person who fired the shots, but a description of the vehicle from which the shots were fired matched that of a vehicle owned by José Juan Cazares. Campos’s sister later told him that Cazares was driving the vehicle.
B. The Shooting on July 4, 2006
On July 4, 2006, Cazares was traveling in his sport-utility vehicle in Indio, with the Rodriguez brothers as passengers. While Cazares stopped his vehicle at an intersection, Uriel Rodriguez drove a pickup truck alongside Cazares’s vehicle.
Although his injuries were life threatening, Cazares successfully underwent surgery and survived. Neither of the Rodriguez brothers was struck or injured by any of the bullets.
C. Campos’s Arrest and Trial
Campos was subsequently arrested. After being advised of and waiving his rights under Miranda v. Arizona (1966)
An information was filed against Campos charging him with three counts of willful, deliberate and premeditated attempted murder (counts 1, 2 & 3) (§§ 187, subd. (a), 664); three counts of assault with a semiautomatic firearm (counts 4, 5 & 6) (§ 245, subd. (b)); and one count of discharging a firearm at an occupied motor vehicle (count 7) (§ 246). The information also alleged that Campos (1) personally inflicted great bodily injury on Cazares (§ 12022.7, subd. (a)) as to counts 1, 4 and 7; (2) was armed with a firearm during the commission of the offenses (§ 12022, subd. (a)(1)) as to counts 1, 2 and 3; (3) personally used a firearm during the commission of the offenses (§ 12022.5, subd. (a)) as to counts 1 through 6; (4) personally and intentionally discharged a firearm causing great bodily injury during the commission of the offenses (§ 12022.53, subd. (d)) as to counts 1, 2, 3 and 7; (5) committed the offenses while he was on bail (§ 12022.1) as to all counts; (6) committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)) as to all counts; and (7) served a prison term for a prior felony (§ 667.5, subd. (b)). The allegation concerning Campos’s having served a prior prison term was later dismissed on the People’s motion.
At trial, the People played the videotape of Campos’s interview with the police and introduced the transcript of the interview as an exhibit. The People also introduced many photographs of the crime scene and called the victims, investigating police officers and other witnesses to testify about the shootings
The jury returned verdicts of guilty on all counts and found true (1) the gang allegations (§ 186.22, subd. (b)) as to all counts; (2) the allegations that Campos personally used a firearm (§ 12022.5, subd. (a)) as to counts 1 through 6; (3) the allegations that Campos personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) as to counts 1, 2, 3 and 7; and (4) the allegations that Campos caused great bodily injury (§ 12022.7, subd. (a)) as to counts 1, 4 and 7. The jury returned no findings on the allegations that Campos was armed during commission of the offenses (§ 12022, subd. (a)(1)) or that he committed the offenses while on bail (§ 12022.1).
D. Campos’s Prison Sentence
On the three convictions of attempted murder (counts 1, 2 & 3) and the conviction of shooting at an occupied vehicle (count 7), the trial court sentenced Campos to an aggregate indeterminate prison term of 40 years to life. Specifically, for the attempted willful, deliberate and premeditated murder of Cazares (count 1), the court sentenced Campos to prison for seven years to life (§§ 664, subd. (a), 3046, subd. (a)(1)), plus 25 years to life for the attached enhancement for personally and intentionally discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to count 1, the trial court also stated that “with respect to . . . Penal Code 186.22 (b), the gang enhancement, the additional punishment for that violation is stayed.” On each of the convictions of the attempted willful, deliberate and premeditated murders of the Rodriguez brothers (counts 2 & 3) and the conviction of discharging a firearm at an occupied motor vehicle (count 7), the court sentenced Campos to prison for 15 years to life (§§ 664, subd. (a), 186.22, subd. (b)(4)(B), (5)),
On the three convictions for assault with a semiautomatic firearm (counts 4, 5 & 6), the trial court imposed and, pursuant to section 654, stayed execution of determinate base sentences and attached enhancements. We do not discuss the details of these sentences because they are not at issue on this appeal.
The court also imposed a consecutive one-year enhancement for Campos’s prior prison term (§ 667.5, subd. (b)), even though the court previously had dismissed the allegations pertaining to this enhancement.
Campos filed a timely notice of appeal.
II
DISCUSSION
A.-C.
D. The Trial Court Imposed an Unauthorized Sentence on Count 1 and Improperly Struck Certain Enhancement Allegations from Counts 1, 2, 3 and 7
As noted earlier, we requested supplemental briefing from the parties on two issues; (1) the propriety of the sentence of seven years to life in prison imposed for the conviction on count 1 of the attempted murder of Cazares and (2) the propriety of the trial court’s striking from counts 1, 2, 3 and 7 the firearm enhancements under section 12022.5, subdivision (a) and the great bodily injury enhancements under section 12022.7, subdivision (a). The parties agree that the sentence imposed for the conviction on count 1 was unauthorized and that the striking of the above mentioned enhancements was error. The parties disagree, however, on whether the trial court was required to impose the alternate penalty prescribed by section 186.22,
1. The Trial Court Improperly Stayed the Punishment Prescribed by Section 186.22, Subdivision (b)(5) for the Conviction on Count 1
The sentence of seven years to life in prison that the trial court imposed for Campos’s conviction on count 1 was unauthorized. The court calculated this sentence based on section 664, subdivision (a), which specifies life imprisonment with the possibility of parole as the punishment for attempted willful, deliberate and premeditated murder, and section 3046, subdivision (a)(1), which requires a person imprisoned under a life sentence to serve at least seven years before being paroled.
2. The Trial Court Has No Power to Refuse to Impose the Alternate Penalty Prescribed by Section 186.22, Subdivision (b)(5)
Although conceding the sentence imposed for the conviction on count 1 was unauthorized, Campos argues the trial court has discretion to dismiss or strike the gang allegations and refuse to impose the alternate penalty prescribed by section 186.22, subdivision (b)(5). According to Campos, such discretion is conferred by section 186.22, subdivision (g) and by section 1385, subdivision (a). We disagree.
a. Section 186.22, Subdivision (g) Does Not Authorize Courts to Refuse to Impose the Alternate Penalty Prescribed by Section 186.22, Subdivision (b)(5)
» Section 186.22, subdivision (g) 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 for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.” (Italics added.) This provision does not apply to the penalty prescribed by section 186.22, subdivision (b)(5) (i.e., imprisonment for at least 15 years before parole eligibility if the felony is punishable by a life sentence) for at least two reasons.
First, unlike the penalties prescribed by section 186.22, subdivision (b)(1), which add terms of two, three, four, five or 10 years to the prison term for the underlying felony, the penalty prescribed by section 186.22, subdivision (b)(5) “is not a sentence enhancement” “because it is not an ‘additional term of imprisonment’ and it is not added to a ‘base term.’ ” (People v. Jefferson (1999)
Second, section 186.22, subdivision (b)(5) does not impose a minimum jail sentence for misdemeanors. It imposes a minimum period of confinement of 15 years in prison before parole eligibility for felonies punishable by life in prison (Lopez, supra,
b. Section 1385, Subdivision (a) Does Not Authorize Courts to Refuse to Impose the Alternate Penalty Prescribed by Section 186.22, Subdivision (b)(5)
Under section 1385, subdivision (a), a “judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” This power to dismiss extends to the entire action as well as to individual charges and allegations in the action. (In re Varnell (2003)
We do not read Bonnetta, supra,
We also do not read Romero, supra,
First, the language of section 186.22, subdivision (g) manifests legislative intent to preclude operation of section 1385 as to gang allegations, enhancements and alternate penalties. Although “clear language eliminating a trial court’s section 1385 authority” is required (People v. Fritz (1985)
This conclusion is supported by Romero, supra,
Second, the conclusion that trial courts may not use section 1385 to dismiss or strike gang allegations or enhancements or to refuse to impose gang alternate penalties follows from two rules of construction that apply to statutes that cover the same subject: (1) the specific statute prevails over the general statute (Code Civ. Proc., § 1859; People v. Superior Court (Jimenez) (2002)
Third, and finally, trial courts may not use section 1385, subdivision (a) to dismiss or strike gang allegations or enhancements or to refuse to impose gang alternate penalties because such use would render section 186.22,
In sum, we hold that the existence and language of section 186.22, subdivision (g) provide “clear legislative direction” (People v. Thomas, supra, 4 Cal.4th at p. 210) that courts are to apply that statute—and not section 1385, subdivision (a)—in gang cases when considering whether to dismiss or strike allegations or enhancements or to refuse to impose alternate penalties. Because section 186.22, subdivision (g) does not authorize courts to refuse to impose the minimum prison time that must be served before parole eligibility for felonies punishable by life in prison prescribed by section 186.22, subdivision (b)(5), we hold that imposition of that penalty is mandatory. (See Johnson, supra,
3., 4.
The convictions on all counts are affirmed. The sentence is reversed, and the matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion.
McConnell, P. J., and Huffman, J., concurred.
Appellant’s petition for review by the Supreme Court was denied September 14, 2011, SI94670. Kennard, J., was of the opinion that the petition should be granted.
Notes
All undesignated statutory references are to the Penal Code.
Because the jury found Campos committed the crimes alleged in counts 2, 3 and 7 for the benefit of a criminal street gang, the trial court imposed the alternate penalty of 15 years to life in prison for each offense. (See People v. Jones (2009)
See footnote, ante, page 438.
The trial court apparently followed the probation officer’s report, which states that the penalty for “[attempted murder—w/premeditation” is “ ‘[l]ife in prison’—earliest release 7 years.” The report also states, erroneously, that People v. Salas (2001)
The probation officer’s report did not repeat this error as to Campos’s convictions on count 2, 3 or 7. Thus, the trial court correctly imposed the 15-year minimum term on those convictions.
We are aware that our Supreme Court has held that as used in section 12022.53, subdivision (e)(2), “the word ‘enhancement’ includes not only the sentence enhancements of section 186.22, but also the alternate penalty provisions in that section.” (Brookfield, supra,
We disagree with People v. Torres (2008)
We have reviewed the scant legislative history pertaining to the enactment of the language authorizing trial courts to refuse to impose the minimum jail sentence for misdemeanors when section 186.22 was amended in 1989. (See Stats. 1989, ch. 144, § 1, p. 1095.) According to the enrolled bill report: “In cases involving certain felonies committed in the context of gang activity, an enhancement of 1, 2, or 3 years is added onto the base term for the offense. SB 1555 also contained a provision making it a misdemeanor for a parent to encourage, further, or assist the criminal conduct of a minor child involved in a gang. The bill also required a minimum sentence for conviction of such a misdemeanor, [f] Under existing law, the court is authorized to strike the sentence enhancements in felony cases where the interest of justice would best be served. However, the law enacted with last year’s SB 1555 does not similarly authorize the court to refuse to impose the required minimum jail sentence in the misdemeanor cases. This bill essentially gives the court discretionary authority in misdemeanor cases comparable to that which the court currently has for sentence enhancements in felony cases under similar circumstances.” (Off. of Crim. Justice Planning, Enrolled Bill Rep. on Sen. Bill No. 1555 (1989-1990 Reg. Sess.) July 10, 1989, pp. 1-2, italics added.)
This analysis is consistent with the view that in felony cases the trial court had power under the preamendment version of section 186.22, subdivision (g) to strike the additional terms of years prescribed by section 186.22, subdivision (b)(1), which are truly “enhancements.” (See Cal. Rules of Court, rule 4.405(3) [“ ‘Enhancement’ means an additional term of imprisonment added to the base term.”].) The 1989 amendment extended a similar power to allow trial courts to refuse to impose the minimum jail sentence for misdemeanors prescribed by section 186.22, subdivision (d). But, no such power was extended to authorize trial courts to refuse to impose the alternate penalties for felonies prescribed by section 186.22, subdivision (b)(4) and (5), because, as explained in the text, they are neither enhancements nor minimum jail sentences for misdemeanors.
See footnote, ante, page 438.