People v. Ruiz CA2/6 ( 2021 )

Filed 10/19/21 P. v. Ruiz CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B307717
(Super. Ct. No. 2014011115)
Plaintiff and Respondent, (Ventura County)
v.
FRANK RUIZ,
Defendant and Appellant.
Frank Ruiz appeals from the judgment entered after the
trial court resentenced him upon remand by this court. In People
v. Ruiz (Feb. 10, 2020, B291732) [nonpub. opn.] (Ruiz), we
directed the trial court to exercise its discretion whether to strike
a prior serious felony conviction and a firearm-use enhancement.
We reject appellant’s claim that the trial court abused its
discretion in refusing to strike the prior conviction and
enhancement. We accept the Attorney General’s concession that
the trial court erroneously imposed a five-year enhancement for
actively participating in a criminal street gang pursuant to Penal
Code section 186.22, subdivision (b)(1)(B).1 The imposition of this
enhancement violated section 1170.1, subdivision (f). We stay
execution of the five-year enhancement and affirm the judgment
as modified.
Procedural History
A jury convicted appellant of actively participating in a
criminal street gang (count 1 - Pen. Code, § 186.22, subd. (a)) and
assault with a firearm (count 2 - § 245, subd. (a)(2)). As to the
second count, the jury found true allegations that appellant had
personally used a firearm (§ 12022.5, subd. (a)) and had
committed the offense for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). Appellant admitted one prior serious
felony conviction (§ 667, subd. (a)(1)), one prior prison term
(§ 667.5, subd. (b)), and one prior “strike” within the meaning of
California’s “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)).
The trial court sentenced appellant on count 1 but stayed
execution of the sentence pursuant to section 654. As to count 2 –
assault with a firearm – the court imposed the following
sentence: the upper term of four years, doubled to eight years
because of the strike; plus five years for the gang enhancement;
plus the upper term of 10 years for the firearm-use enhancement;
plus five years for the prior serious felony conviction; plus one
year for the prior prison term. Pursuant to section 654, the court
stayed execution of the 10-year sentence for the firearm-use
enhancement and the one-year sentence for the prior prison term.
The aggregate unstayed sentence was 18 years.
Appellant appealed. We reversed the conviction on count 1
for insufficiency of the evidence. As to the conviction for assault
1 All statutory references are to the Penal Code.
2
with a firearm (count 2), on our own motion we vacated the trial
court’s unauthorized section 654 stay of execution of the 10-year
consecutive sentence for the firearm-use enhancement. This
increased appellant’s aggregate unstayed sentence from 18 years
to 28 years. In the disposition we stated: “The matter is
remanded to the trial court with directions to exercise its
discretion whether to strike the prior serious felony conviction in
furtherance of justice. (§§ 667, subd. (a)(1), 1385.) The trial court
may also consider whether to exercise its discretion to strike the
firearm-use enhancement ‘in the interest of justice pursuant to
Section 1385.’ (§ 12022.5, subd. (c).)” In all other respects, we
affirmed the judgment.
On remand, the trial court resentenced appellant to prison
for 28 years. It refused to strike the prior serious felony
conviction or the firearm-use enhancement. It explained, “The
reason the Court is not inclined to strike either is that special
allegation number 2 [the firearm-use enhancement] is the exact
conduct that the defendant was sentenced to prison for in 2002.”
According to the probation report, in 2002 appellant pleaded
guilty to assault with a firearm and admitted enhancement
allegations that he had personally inflicted great bodily injury,
personally used a firearm, and committed the offense for the
benefit of a criminal street gang. He was sentenced to prison for
eight years. The probation report said that appellant and a
companion had an argument with “three victims.” Appellant
“removed a handgun and fired two shots, hitting one of the
victims.”
The trial court observed, “[Appellant] was released from
prison less than four years before the present offense and was
3
discharged from parole less than one month prior to this offense
whe[re] his conduct was essentially the same.”
The court declined to impose less than the upper term of 10
years for the firearm-use enhancement. The court said, “Factors
in aggravation justify that particular term. His prior convictions
are numerous, . . . [and] he poses a serious danger to society . . . .”
Facts
The facts are taken from our prior unpublished opinion.
(Ruiz, supra, slip opn. at pp. 3-4.)
“One night in October 2013, [R.M. (victim)] and his
girlfriend, [J.M], drove to Vons to buy baby supplies. [J.M.]
entered the store while [victim] remained by the vehicle in the
parking lot. A young, skinny man approached [victim] and
asked, ‘[W]here you from?’ [Victim] replied, ‘I ain’t from nowhere,
where you from?’ The man said he was from ‘Southside’ or ‘Sur
Town.’ The man ‘tried to sucker punch’ [victim] and ‘barely
misse[d]’ him.
“[Victim] chased the man, who was not armed. He heard
[his girlfriend] call out that someone had a gun. [Victim]
suddenly saw a bigger, older man about 15 feet away and ‘could
hear him try to cock [the gun], but he couldn’t.’ [Victim] ‘started
running.’ ‘He was zig-zagging in an attempt not to get shot.’ He
heard one shot fired. The bullet did not strike him.
“[E.W. testified that he had seen] the bigger, older man
chase [victim]. The man shot once at [victim]. He ‘was definitely
trying to hit [him].’ ‘He was aiming directly at [him].’ It was not
‘a warning shot.’ The shooter and his companions ran to a car,
entered it, and drove away ‘at a high rate of speed.’
“The shooter was identified as appellant. He was a long-
time member of the Sur Town Chiques (Sur Town) criminal
4
street gang. His gang moniker was ‘Villain.’ The trial court took
judicial notice before the jury that in 2002 appellant had been
convicted ‘of a violent felony for the benefit of the Sur Town
criminal street gang against a victim who [was] a documented
member of the Colonia Chiques criminal street gang.’ [Footnote
omitted.] A gang expert opined that appellant was still a
member of Sur Town at the time of the October 2013 Vons
parking-lot shooting.
“The skinny, younger man who threw the punch at [victim]
was identified as [J.H.]. A gang expert opined that [J.H.] ‘was a
Sur Town gang member . . . .’
“A police officer found a spent shell casing in the Vons
parking lot. The shell casing had been ejected from the same 9-
millimeter pistol that had been used in four other gang shootings.
“In response to the prosecutor’s hypothetical question
incorporating the facts of the Vons parking-lot shooting, a gang
expert opined that it had been committed for the benefit of a
criminal street gang.”
The Trial Court Did Not Abuse Its Discretion
The trial court had discretion whether to strike the prior
serious felony conviction and the firearm-use enhancement. We
review its refusal to strike them for abuse of discretion. (People
v. Carmony (2004) 33 Cal.4th 367, 373, 375.) “In reviewing for
abuse of discretion, we are guided by two fundamental precepts.
First, ‘“[t]he 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.”’ [Citations.]
5
Second, a ‘“decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.’”’” (Id. at pp. 376-377.)
For several reasons, appellant contends that the trial court
abused its discretion. First, “there would be no reason not to
strike the firearm use enhancement on remand, since it originally
had stayed sentence based on the same course of conduct as the
principal charge,” i.e., assault with a firearm. Appellant is
referring to the following statements by the trial court at the
time of the original sentencing: “[T]here would seem to be some
logic in [section] 654 applying to the special allegation for
personal use of a firearm when the principal offense is assault
with a firearm.” “[I]t [the 10-year term imposed for the firearm
enhancement] is stayed . . . pursuant to Penal Code section 654
because [the firearm use] is part of the same course of conduct as
the principal charge.”
The trial court did not abuse its discretion by refusing to
strike the firearm-use enhancement merely because the use of
the firearm was part of the same course of conduct as the
underlying offense of assault with a firearm. If this constituted
an abuse of discretion, a firearm-use allegation could never be
imposed when the underlying offense is assault with a firearm.
The prohibition would conflict with section 12022.5, subdivision
(d), which states, “[T]he additional term provided by this section
shall be imposed for any violation of Section 245 [aggravated
assault] if a firearm is used . . . .”
The second reason why the trial court allegedly abused its
discretion is that appellant’s “lengthy” aggregate sentence of 28
years “was not justified on the facts.” Since we are staying
6
execution of the five-year term imposed pursuant to section
186.22, subdivision (b)(1)(B), his unstayed aggregate sentence is
actually 23 years, not 28 years. Appellant notes that in 2002 he
was sentenced to only eight years for assault with a firearm upon
three victims and infliction of great bodily injury upon one victim.
Appellant complains, “In the instant case, with no victim hit, and
thus no great bodily injury enhancement alleged, he received a
[23] year term, [15] years greater than the prior offense.” That
appellant received a lenient sentence in 2002 does not mean that
the trial court abused its discretion in imposing a substantially
longer sentence for the present offense. The longer sentence was
justified because of his recidivism. Appellant “recognizes that an
additional four years was attributable to the strike, with five
years for the prior serious felony conviction.”
As his third reason for claiming an abuse of discretion,
appellant alleges that the trial court “was punishing [him]
because of the ‘same conduct’ from the 2002 case” even though
“he had served his time on that case[] and was penalized for that
prior conviction by reason of the strike allegation which doubled
his sentence on the underlying charge, and because of the prior
serious felony conviction under section 667, subdivision (a).”
Therefore, “the aggravated 10-year term for the firearm
enhancement was not justified.” The trial court did not punish
appellant for his conduct in 2002. The court was entitled to take
into account the similarity between the 2002 offense and the
present offense. The similarity and violence of the offenses show
that he made no rehabilitative progress during his imprisonment
and parole for the prior offense. They also show, as the court
found, “that he poses a serious danger to society.”
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Finally, appellant contends that the trial court abused its
discretion in not striking the prior serious felony conviction
because, while on parole from September 7, 2009 to August 13,
2013, he “remained crime free” although “he had two parole
violations.” The four-year parole period was not “a crime-free
cleansing period of rehabilitation” because he committed the
present offense in October 2013, two months after his discharge
from parole. (People v. Humphrey (1997) 58 Cal.App.4th 809,
813.)
The probation report for the present offense aptly
summarizes appellant’s situation: “Before the Court is a 36-year-
old male who has amassed a substantial criminal record dating
back to the age of 13. Despite being afforded numerous
opportunities both as a juvenile and adult to remain in the
community, [appellant] continued to make poor choices. As a
result, in 2002 he was sentenced to prison for a period of eight
years. The prison sentence[,] however, did not thwart [appellant]
from future criminal acts as indicative of the present offense. It
appears [appellant] has a predilection for violent behavior . . . .
[Appellant’s] conduct clearly depicts his volatile nature and his
blatant disregard for human life. . . . [Appellant] poses a threat
to the community . . . .”
Violation of Section 1170.1
Section 1170.1, subdivision (f) provides, “When two or more
enhancements may be imposed for being armed with or using a
dangerous or deadly weapon or a firearm in the commission of a
single offense, only the greatest of those enhancements shall be
imposed for that offense.” Appellant claims, and the Attorney
General concedes, that the trial court violated this provision by
“impos[ing] two different sentence enhancements for the assault
8
with a firearm, one under section 12022.5(a) [personal use of a
firearm – 10 years], and the other under section 186.22,
subdivision (b)(1)(B) [actively participating in a criminal street
gang – 5 years].”
We agree. Section 186.22, subdivision (b)(1)(B) provides, “If
the [underlying] felony is a serious felony, as defined in
subdivision (c) of Section 1192.7, the person shall be punished by
an additional term of five years.” Appellant’s “crime qualifies as
a serious felony solely because it involved a firearm. The crime
fell under subdivision (c)(8) of section 1192.7, which applies to
‘any felony in which the defendant personally uses a firearm’
(id., subd. (c)(8)), or subdivision (c)(23), which applies to ‘any
felony in which the defendant personally used a dangerous or
deadly weapon’ (§ 1192.7, subd. (c)(23)), or subdivision (c)(31),
which applies to ‘assault with a deadly weapon, firearm,
machinegun, assault weapon, or semiautomatic firearm’
[citation]. These three provisions constitute the sole bases under
which [appellant’s] conduct . . . would be a serious felony, and
they all clearly implicate the use of a firearm.” (People v. Le
(2015) 61 Cal.4th 416, 425.) “Therefore, . . . [appellant’s] section
186.22[(b)(1)(B)] gang enhancement . . . is an enhancement
‘imposed for being armed with or using . . . a firearm.’ (§ 1170.1,
subd. (f).) Under section 1170.1, subdivision (f), the underlying
felony, based on section 245, subdivision [(a)(2)], could not be
enhanced for use of a firearm both under section 12022.5,
subdivision (a), and section 186.22, subdivision (b)(1).
Rather, section 1170.1 required that only the greater of the two
enhancements—in this case, the enhancement under section
12022.5—could be imposed.” (Id. at p. 425.)
9
Unlike section 186.22, subdivision (b)(1)(B), section 186.22,
subdivision (b)(1)(A) does not require that the underlying felony
be a serious felony. Section 186.22, subdivision (b)(1)(A)
provides, “Except as provided in subparagraph (B) and (C), the
person shall be punished by an additional term of two, three, or
four years at the court’s discretion.” But appellant’s sentence
cannot be enhanced under subdivision (b)(1)(A). “[B]ecause
subdivision (b)(1)(A) unambiguously excludes serious and violent
felonies, that enhancement may not be appended to a serious . . .
felony” such as assault with a firearm. (People v. Francis (2017)
16 Cal.App.5th 876, 882 (Francis).)
The Attorney General requests “that the matter be
remanded to give the trial [court] an opportunity to restructure
its sentencing choices.” We agree with appellant that “remand is
unnecessary” because the “upper term sentence” imposed here
“leaves nothing to ‘restructure.’” The trial court imposed the
four-year upper term for assault with a firearm and doubled it to
eight years because of the strike. It also imposed the 10-year
upper term for the firearm-use enhancement. Thus, “[i]n this
case . . . the trial court imposed the maximum possible sentence.
As there are no sentencing choices to restructure, it is
appropriate for us to modify the sentence on appeal. (§ 1260
[appellate court’s power to modify judgments] . . . .)” (Francis,
supra, 16 Cal.App.5th at p. 887.)
Disposition
Execution of the five-year sentence imposed for the firearm-
use enhancement pursuant to section 186.22, subdivision
(b)(1)(B), is stayed. This reduces appellant’s unstayed aggregate
sentence from 28 years to 23 years. As modified, the judgment is
affirmed. The trial court shall prepare an amended abstract of
10
judgment and send a certified copy to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
11
David R. Worley, Judge
Superior Court County of Ventura
______________________________
Susan S. Bauguess, under appointment by the Court of
Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Stephanie C. Santoro, Deputy Attorney
General, for Plaintiff and Respondent.