THE PEOPLE v. MIGUEL MATA GONZALEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL MATA GONZALEZ, Defendant and Appellant.

B225173

Decided: March 24, 2011

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

This case is before us for the second time.   A jury convicted Manuel Mata Gonzalez on count one of carjacking and on count two of evading a peace officer.   As to count one, gang and weapon allegations were found true.   The trial court sentenced defendant to the middle term of five years in state prison on count one, added 10 years for the weapon enhancement and another 10 years for the gang enhancement, and added a life term under Penal Code section 186.22, subdivision (b)(4), for a final sentence of 25 years to life.   The record was unclear as to the sentence on count two, the reporter's transcript indicating only that the trial court stayed defendant's sentence on that count (without indicating what the sentence was), while the sentencing minute order indicated an unauthorized sentence was imposed (and stayed).

We concluded substantial evidence did not support the gang enhancement, and therefore reversed it.   We also concluded the sentence on count two was unclear.   We reversed that sentence and remanded the case for resentencing.

On remand, the trial court imposed the upper term of nine years as to count one, again imposed the 10-year weapon enhancement, imposed the high term of three years on count two, and made that sentence consecutive to the sentence on count one, for a final sentence of 22 years.

Defendant contends the trial court:  (1) arbitrarily sentenced him to the upper term on count one;  (2) erred by refusing to stay the sentence on count two;  and (3) improperly failed to treat the sentence on count two as subordinate to that on count one.

We modify the sentence on count two but otherwise affirm.

BACKGROUND

On June 17, 2007, Graciela Avila was sitting in the passenger seat of her son's car outside a market.   The keys were in the ignition.   Without warning, defendant opened the front driver's side door, got inside the car, pointed a gun at Ms. Avila and said “Get out or I'm going to ․ waste you.”   Ms. Avila complied, then went into the market and informed her son.   Her son notified the police.

Sheriff's Deputy Ramirez was on duty in the area in a marked patrol car.   He saw a car matching the description of the carjacked vehicle being driven by defendant and followed it.   Defendant drove fast and eventually turned onto a one-way, one-lane residential street that had a posted speed limit of 15 miles per hour.   After once colliding with a parked car, defendant raced down the street at about 40 to 50 miles per hour, swerved back and forth, and sped through two stop signs before colliding with a second parked car.   He was apprehended.

The trial court sentenced defendant to the middle term of five years on the carjacking count without substantive comment.   As to the sentence on count two, the trial court stated only the following:  “Count 2, I intend to stay that.   Count 2 will be stayed.”

At resentencing after defendant's successful appeal, the trial court stated, “I'm going to find, based on the severity of the carjacking and the sophistication exhibited, give the defendant the high term of nine years state prison as to count 1.[¶] The gun allegation was found to be true, that's an additional ten years as to count 1, for a total of 19 years state prison.  [¶] Count 2, there not only was an attempting to flee, but there was in fact the danger to the public in that there was an accident, as I see it.   Before the defendant was apprehended, there was an evasion of a peace officer in a vehicle, willful disregard for the safety and property of the public and others in general.  [¶] So I'll find the high term on count 2, which is three years.   And I'll make that consecutive to count 1.”

DISCUSSION

A. Increased Sentence on Counts One and Two

Defendant contends the trial court abused its discretion when at the resentencing hearing it imposed the upper term on count one with no meaningful explanation or changed circumstances.   We disagree.

Preliminarily, the People argue defendant has forfeited any claim of sentencing error by failing to object to the increased sentence below.   We need not decide whether the claim of error is forfeited because we would opt to consider it in any event.  (See People v. Williams (1998) 17 Cal.4th 148, 161, fn.   6 [“An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party.”].)

“Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years.”  (Pen.Code, § 215, subd. (b);  all undesignated statutory references will be to this code.)  “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court․  The court shall select the term which, in the court's discretion, best serves the interests of justice.   The court shall set forth on the record the reasons for imposing the term selected ․“ (§ 1170, subd. (b).)  “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.  [Citation.]  In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’  [Citation.]”  (People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 977-978.)

After the first trial, defendant was sentenced on count one to the middle term of five years.   At resentencing the court sentenced defendant to the upper term of nine years on count one, explaining it did so “based on the severity of the carjacking and the sophistication exhibited.”   Defendant argues this was improper because a sentence on any single count may not be increased to punish exercise of a constitutional right-the right to appeal.   No authority supports the argument.

Sentencing discretion cannot be exercised with the purpose of punishing a successful appeal.  (People v. Collins (2001) 26 Cal.4th 297, 306 [“the state is prohibited by the federal Constitution from punishing a defendant for the exercise of a constitutional right”];  People v. Ali (1967) 66 Cal.2d 277, 281 [“a defendant is not required to risk his life to invoke his right to appeal․”].)  “ ‘Due process of law ․ requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.’  [Citation.]  ‘In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for him doing so must affirmatively appear.’  [Citation.]  Otherwise, a presumption arises that a greater sentence has been imposed for a vindictive purpose-a presumption that must be rebutted by ‘ “objective information ․ justifying the increased sentence.” ’  [Citation.]”  (Alabama v. Smith (1989) 490 U.S. 794, 798-799.)

But a trial court's original sentencing choices do not constrain the court “from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased.”  (People v. Burbine (2003) 106 Cal.App.4th 1250, 1256.)   “When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme.   Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.  [Citations.]  This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components.”  (People v. Hill (1986) 185 Cal.App.3d 831, 834.)

Here, though the sentence on count one was increased, defendant's aggregate decreased, from 25 years to life to 22 years.   This was permissible.   Defendant's argument that a sentence on any single count cannot increase on remand “assumes that a felony sentence for a multiple-count conviction consists of multiple independent components, rather than being an integrated whole-a view that has been repeatedly rejected by other courts that have considered the issue.”  (People v. Burbine, supra, 106 Cal.App.4th at p. 1257.)

B. Consecutive Sentence on Count Two

Defendant contends the trial court erred by failing to stay sentence on count two under section 654, which prohibits multiple punishment for the same act.   We disagree.

Punishment for two crimes arising from a single, indivisible course of conduct is prohibited.  “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a);  People v. Latimer (1993) 5 Cal.4th 1203, 1208.)   If both crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once.  (People v. Latimer, at p. 1208.)   But if a defendant had separate objectives that “were either (1) consecutive even if similar or (2) different even if simultaneous,” multiple punishment is permissible, even if the crimes shared common acts or were parts of an otherwise indivisible course of conduct.  (People v. Britt (2004) 32 Cal.4th 944, 952;  People v. Harrison (1989) 48 Cal.3d 321, 335.)

Here, the objective of the carjacking was to take a vehicle from Ms. Avila.   The crime was completed when Avila got out of the car and defendant drove away.   It was not until sometime later, after the police had been notified and an alert had gone out, that Deputy Ramirez spotted the vehicle and followed it.   At this time the second crime occurred-defendant's attempt to evade a police officer.   This sequence of events supports the trial court's conclusion that defendant had separate objectives that were consecutive, even if similar.   Accordingly, defendant may be separately punished with consecutive sentences for carjacking and evading a police officer.

C. Full, Upper-Term Sentence on Count Two

Defendant contends the trial court erred by imposing a full, upper-term sentence on count two.   The People concede the point.

Subdivision (a) of section 1170.1 provides, in pertinent part, the following:  “The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed․”  Reckless evasion carries a determinate term of 16 months, two years, or three years.  (Veh.Code, § 2800.2, subd. (a);  Pen.Code, § 18.)

Here, the sentence on count two, the subordinate term, should have been reduced to one-third the middle term, i.e., to eight months.

DISPOSITION

The judgment is modified to reflect a sentence on count two of eight months.   As modified, the judgment is affirmed.   The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.