P. v. Ibarra CA4/2

Filed 5/8/13 P. v. Ibarra CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054766
v. (Super.Ct.No. FSB902536)
ERIK IBARRA et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed with directions.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant Erik Ibarra.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant Gabriel Adam Sanchez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Lilia E. Garcia and Stacy
Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
1
Following a jury trial, defendants and appellants Erik Ibarra (Defendant Ibarra)
and Gabriel Adam Sanchez (Defendant Sanchez) were convicted of first degree murder
(Pen. Code,1 § 187, subd. (a)) of Michael Edayan (the Victim); robbery (§ 211) of the
Victim and four others; and attempted premeditated murder (§§ 187, subd. (a), 664) of
the four others. The jury also found that with respect to the murder and robbery of the
Victim, Defendant Ibarra personally and intentionally discharged a firearm that killed
him (§ 12022.53, subd. (d)), and that Defendant Ibarra personally used, and personally
and intentionally discharged, a firearm in the commission of all the crimes. (§ 12022.53,
subds. (b), (c).) Finally, the jury found that Defendant Sanchez knew his codefendant
was armed during the commission of all of the charged crimes. (Former § 12022, subd.
(a)(1).)
On October 7, 2011, Defendant Ibarra was sentenced to state prison for an
indeterminate term of 75 years to life, plus a consecutive term of 106 years 8 months.
Defendant Sanchez was sentenced to state prison for an indeterminate term of 50 years to
life plus an additional consecutive term of one year. Both appeal. Defendant Ibarra
contends the trial court committed reversible error by allowing an expert to testify about
his purported gang motive or gang intent, and the abstract of judgment incorrectly
describes one sentence enhancement. Defendant Sanchez contends he received
ineffective assistance of counsel when his attorney failed to ask the trial court to dismiss
his prior conviction alleged under the “Three Strikes” law, and section 654 precludes
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
imposition of concurrent terms on the five robbery convictions. Defendant Sanchez
further joins in any argument made by Defendant Ibarra.
I. STATEMENT OF FACTS
Given Defendants’ issues on appeal, a shortened version of the facts will suffice;
however, further facts will be provided throughout the opinion as needed.
On the late evening of June 14, 2009, the Victim and Bryan Juarez, Michael
Hilliard, Juan Monge, and Juan Nieto went to Blair Park in San Bernardino to do some
target practicing with their airsoft2 guns. While at the park, Defendants approached
them. Defendant Ibarra had a black semiautomatic firearm pointed at them as Defendant
Sanchez went through everyone’s pockets. As Defendants began to walk away, the
Victim called out something to the effect of, “hey, if you put the gun down, we can
fight.” Defendant Ibarra, followed by Defendant Sanchez, immediately “[t]urned around
and took a few steps closer [to the Victim] and fired” into his face. Defendant Ibarra then
opened fire on the others. The Victim died.
II. GANG EXPERT TESTIMONY
Defendants contend the trial court erred in admitting testimony they were
affiliated with a gang. They argue the evidence was irrelevant and unduly prejudicial,
and that its admission violated their constitutional rights to due process and a fair trial.
2 Airsoft guns fire only small plastic pellets with a force inadequate to break skin.
They are toy “replicas” of guns that bear a distinct bright-orange plastic piece at the end
of the barrel.
3
A. Further Background Information.
Prior to trial on July 19, 2011, the People moved to admit gang evidence to show
that Defendants were “both gang members from the same gang out of Monrovia,” and
they had been convicted of a gang-related battery which they committed in concert. The
prosecutor argued the evidence was relevant to show (1) Defendant Sanchez’s knowledge
that (a) violence was the “natural and probable consequence” of committing a crime with
Defendant Ibarra and (b) Defendant Ibarra was armed on the night in question; and
(2) Defendant Sanchez’s “intent” and “plan” in committing the charged crimes with his
fellow gang member. She also argued the evidence was relevant to the underlying
reason, or motive, for the fatal shooting, namely, that as a gang member accompanied by
another gang member, Defendant Ibarra was bound by code and a desire for personal
glory to react to the Victim’s challenging comment with deadly force.
The court remarked that Defendant Ibarra’s gang membership did not “necessarily
go to premeditation” but agreed that it was relevant to motive. The prosecutor continued
that the gang-related motive was not limited only to elevating the gang’s and Defendant
Ibarra’s own status, but included instilling fear in the community and discouraging
witnesses from cooperating with the police.
The court clarified: “So with respect to [Defendant] Ibarra, there’s motive,
increased status in the gang . . . [and] witness fear and intimidation? [¶] . . . [¶] . . .
[And w]ith respect to [Defendant] Sanchez, it’s— [¶] . . . [¶] . . . natural and probable
cause—foreseeability that he has a gun, that he might use the gun, and the fact that they
4
have previously committed a crime together, which shows or can show that they planned
this robbery together?” The prosecutor responded affirmatively.
Defendant Ibarra’s counsel objected that the evidence was irrelevant. He argued
that the evidence would only have been relevant had there been a gang charge or
allegation. He denied that the evidence tended to establish motive and characterized the
prosecution’s argument as an illogical leap that a gangster would have a special reason
for pulling the trigger. The court clarified that the expert would simply testify to “how
important not being . . . disrespected is to a gang member and that that sort of disrespect
will be met with violence, especially when it’s committed in front of another gang
member.” The court again remarked that it did not “buy the premeditation argument,”
but stated that the evidence was relevant to Defendant Ibarra’s motive for shooting.
Defendant Ibarra’s counsel countered that the evidence was “extremely
prejudicial” and that it would permit the prosecutor to “present a picture to the jury of a
violent gang member . . . .” He again asserted that the evidence would only have been
admissible had Defendants been charged with a gang crime. The court stated: “It also
becomes relevant . . . if some of th[e] witnesses are fearful about testifying because they
suspect these people are gang members . . . so I think it’s relevant for motive and witness
reactions and fear.” The prosecutor noted that “[w]ith respect to prejudice,” the charged
crimes, namely, that “[Defendant] Ibarra shot some kid point-blank in the face during a
robbery,” were far more egregious than the anticipated gang evidence, so the latter
evidence was unlikely to emotionally sway jurors.
5
Defendant Sanchez’s counsel argued that the evidence was inadmissible
“character evidence” proscribed by Evidence Code section 1101, subdivision (a). He
acknowledged the exceptions for “knowledge, intent, motive, plan, or scheme,” but
contended there was “no question about the motive for the robbery,” or the “intent of the
shooter.” According to his interpretation of the case, the motive was obvious from the
fact that “the victim made a statement, and that [Defendant] Ibarra responded to that
statement.” He also complained that the People were not required to prove motive, and
they had “plenty of evidence as to the issues that they have to prove.” Finally, he
repeated the argument of Defendant Ibarra’s counsel that only a gang crime charge or
gang allegation would have made gang evidence relevant.
The court found it significant that Defendants had committed prior crimes together
and pointed out that the People sought to introduce the gang evidence to show the motive
not for the robbery but for the shooting. The court then took the matter under
submission.
A few days later, on July 20, 2011, prior to the start of trial, the court ruled the
gang evidence was “admissible as to [Defendant] Ibarra regarding motive with respect to
the murder charge. [¶] It’s significant that one of those gang priors that the defendants
committed together and, therefore, the identity of each of them in this crime, it goes to
whether they had a plan or scheme to commit the robbery ahead of time. [¶] It goes to
[Defendant] Sanchez regarding knowing whether the codefendant was armed, if, in fact,
he was, and it goes to whether he would have known that the commission of murder was
a natural and probable consequence of an armed robbery. . . .” The court also expressly
6
found that “the probative value was not substantially outweighed by the danger of undue
prejudice . . . .”
During trial, Officer Yolanda Gutierrez testified as a gang expert. She testified
that victims of and witnesses to crimes committed by gang members tend not to
cooperate with the investigation because they “fear . . . what might happen to them or
their family.” “Monrovia Nuevo Varrio” (MNV) is a Hispanic criminal street gang based
in Monrovia. Members, including Defendants, display “MNV,” “MNVR” (Monrovia
Nuevo Varrio Rifa), and “X” with a number three tattoos. Defendant Ibarra is known as
“Stomps” or “Stomper,” and Defendant Sanchez is known as “Lucky” and “Lil’ Vago.”
Defendant Sanchez was convicted in 2004 of robbery and assault, and both crimes
were found to have been committed for the benefit of a criminal street gang. He also was
convicted of being a felon in possession of a firearm, and that crime, too, was found to
have been committed in association with a criminal street gang. Defendants together
committed a battery, which was found to have been committed for the gang, and
Defendant Ibarra was convicted of intimidating a witness, which crime also was found to
have been committed for the gang.
Based on Defendants’ conduct and tattoos, as well as information provided by
other officers who encountered Defendants on the street, Officer Gutierrez opined they
were MNV gang members. She explained that when a gang member is challenged by
someone, he must respond. A response to perceived disrespect would be even more
important if another gang member were present to witness the confrontation. Gang
members back one another up in the commission of crimes. They “communicate with
7
one another. If one has a gun, the other is going to know.” Officer Gutierrez opined that
Defendant Sanchez knew that Defendant Ibarra had a gun. In response to the
hypothetical of two men from Monrovia committing crimes in San Bernardino, the
officer said that such conduct would inure to the benefit of MNV by raising its profile in
the surrounding communities and increasing the gang’s stature. She testified that the
commission of the robbery at Blair Park enhanced Defendant Ibarra’s reputation in the
gang. Regarding the Victim’s statement about putting down the gun, Officer Gutierrez
stated that Defendant Ibarra was “being called out,” and that had he failed to respond to
the challenge, the gang would have found out. The prosecutor then asked, “What would
be the motive [of] . . . shooting at . . . the other young men?” Officer Gutierrez replied,
“To eliminate any possible witnesses.” Similarly, when Defendant Sanchez was in the
getaway car, he told Defendant Ibarra’s then girlfriend and another girl they had “better
not say anything about what happened to anybody and that whatever happened stays with
the people . . . in the car.” Officer Gutierrez opined it was reasonable for the girls to take
Defendant Sanchez’s statement as a threat.
On cross-examination, Officer Gutierrez acknowledged that Blair Park is not in
the territory claimed by MNV, and that the commission of a crime outside the gang
territory could be either good or bad for the member depending on the gang’s policy
about off-territory crimes. She reiterated that gang members work to “instill fear” in the
community.
The jury was instructed that it was not required to accept Officer Gutierrez’s
opinions as true or correct. The jurors were further instructed that gang evidence could
8
only be considered for the limited purposes of (1) deciding Defendants’ identity or
motive; or whether Defendant Sanchez had plan or scheme to commit robbery, knew that
Defendant Ibarra was armed, or knew that murder or attempted murder was a natural and
probable consequence of robbery committed in concert with Defendant Ibarra; and (2)
evaluating witness credibility. The jury was admonished not to consider the evidence for
any other purpose or conclude that Defendants were of bad character or disposed to
commit crime.
B. Applicable Law
“California courts have long recognized the potentially prejudicial effect of gang
membership. As one California Court of Appeal observed: ‘[I]t is fair to say that when
the word “gang” is used in Los Angeles County, one does not have visions of the
characters from the “Our Little Gang” series. The word gang . . . connotes opprobrious
implications. . . . [T]he word “gang” takes on a sinister meaning when it is associated
with activities.’ [Citation.] Given its highly inflammatory impact, the California
Supreme Court has condemned the introduction of such evidence if it is only tangentially
relevant to the charged offenses. [Citation.] In fact, in cases not involving gang
enhancements, the Supreme Court has held evidence of gang membership should not be
admitted if its probative value is minimal. [Citation.] ‘Gang evidence should not be
admitted at trial where its sole relevance is to show a defendant’s criminal disposition or
bad character as a means of creating an inference the defendant committed the charged
offense.’ [Citation.]
9
“Thus, as general rule, evidence of gang membership and activity is admissible if
it is logically relevant to some material issue in the case, other than character evidence, is
not more prejudicial than probative and is not cumulative. [Citation.] Consequently,
gang evidence may be relevant to establish the defendant’s motive, intent or some fact
concerning the charged offenses other than criminal propensity as long as the probative
value of the evidence outweighs its prejudicial effect. [Citations.] ‘Evidence of the
defendant’s gang affiliation—including evidence of the gang’s territory, membership,
signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can
help prove identity, motive, modus operandi, specific intent, means of applying force or
fear, or other issues pertinent to guilt of the charged crime. [Citations.]’ [Citation.]
Nonetheless, even if the evidence is found to be relevant, the trial court must carefully
scrutinize gang-related evidence before admitting it because of its potentially
inflammatory impact on the jury. [Citations.]
“[T]he decision on whether evidence, including gang evidence, is relevant, not
unduly prejudicial and thus admissible, rests within the discretion of the trial court.
[Citation.] ‘Where, as here, a discretionary power is statutorily vested in the trial court,
its exercise of that discretion “must not be disturbed on appeal except on a showing that
the court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]” [Citation.]’ [Citations.] It is
appellant’s burden on appeal to establish an abuse of discretion and prejudice.
[Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 223-225.)
10
C. Analysis
Defendants contend the gang evidence was “wholly lacking in foundation,
speculative, and irrelevant.” (Underlining in original.) They argue that “gang motive or
gang intent was irrelevant to the charged counts and enhancements” because there were
no gang allegations in the information. (Underlining in original.) As such, gang motive
was not needed, nor did any intent to kill “hinge on the presence or absence of a gang
motive . . . .” Moreover, Defendants assert “there was a logical non-gang motive for the
shooting based on a challenge issued by one testosterone-driven young male (already
well aware of the presence of a firearm from the robbery) to another one.” (Underlining
in original.) Viewing the situation as merely a challenge from one caveman to another,
Defendants argue that expert testimony regarding gangs and gang motives was
unnecessary.
In response, the People argue that motive and intent are relevant to explain why
Defendant Ibarra would “walk[] up to an unarmed man and [shoot] him in the face point-
blank for nothing more than his having suggested that [Defendant] Ibarra would not have
been so brazen without his gun.” We agree. Defendants, two armed men, had
successfully robbed five young unarmed men. While one of the five made a verbal
challenge to fight without a gun, why did Defendant Ibarra have to respond so violently?
As the People aptly point out, “[t]he gang expert’s testimony put this otherwise
inexplicably violent response in context.” Namely, Officer Gutierrez explained that
when gang members perceive they have been disrespected, they respond with violence.
The Victim’s verbal challenge was disrespectful to Defendant Ibarra in the presence of
11
another gang member, Defendant Sanchez. Thus, Defendant Ibarra had to defend his
reputation along with that of the gang. The probative value of the gang evidence as to
motive was more than substantial.
Notwithstanding the above, Defendants claim there was no evidence the robbery
or murder was motivated by a desire or intent to benefit the gang. They argue that
(1) there was no evidence the Victim or his friends were from a rival gang, (2) there was
no evidence that gang territory was an issue, and (3) there was no evidence that
Defendants made known their gang affiliation. This argument might have merit if the
only crime charged was robbery. However, the senseless murder of an unarmed young
man, together with the attempted murders of four other young men, under the
circumstances before this court, warrant the introduction of gang evidence.
Regarding Defendants’ gang affiliation, they fault the trial court for allowing
evidence of their prior criminal acts that were gang related, arguing, “these priors [were]
not probative of, or relevant to, [Defendant] Sanchez’s purported ‘knowledge’ about how
[Defendant Ibarra] would act in the park, but [were] inadmissible . . . prior bad acts . . .
[under] subdivisions (a) and (b) of Evidence Code section 1101 . . . .” Again, we
disagree. As the People point out, the prior gang-related crimes show Defendant Ibarra’s
intent to shoot the Victim and the four others, as well as Defendant Sanchez’s knowledge
that Defendant Ibarra was armed, along with Defendant Sanchez’s willingness to commit
violent crimes with his partner.
Finally, Defendants argue that Officer Gutierrez’s opinions that Defendant Ibarra
carried a firearm and shot the Victim with a gang motive or intent violate the rule
12
announced in People v. Killebrew (2002) 103 Cal.App.4th 644, 658, disapproved on
another point in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn 3. However,
“[t]estimony in the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code,
§ 805.) Rather, the admissibility of expert opinion testimony that embraces the ultimate
issue “‘“depends on the nature of the issue and the circumstances of the case, there being
a large element of judicial discretion involved. . . .”’” (Killebrew, supra, at p. 652.) It is
well settled that in cases where gang offenses and enhancements are alleged, expert
testimony regarding the culture, habits, and psychology of gangs is generally permissible
because these subjects are “‘“sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact. [Citations.]” [Citation.]’ [Citation.]” (Id. at p.
656; see also People v. Gardeley (1996) 14 Cal.4th 605, 617.) For example, an expert
may properly testify concerning “the size, composition or existence of a gang [citations],
gang turf or territory [citations], an individual defendant’s membership in, or association
with, a gang [citations], the primary activities of a specific gang [citations], motivation
for a particular crime, generally retaliation or intimidation [citations], whether and how a
crime was committed to benefit or promote a gang [citations], rivalries between gangs
[citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or
attire [citations].” (Killebrew, supra, at p. 657, fns. omitted.) “A trial court’s
determination as to whether an expert should be allowed to opine about a particular
subject is reviewed on appeal for abuse of discretion. [Citations.]” (People v. Sandoval
(2008) 164 Cal.App.4th 994, 1001.)
13
Here, Officer Gutierrez’s testimony not only helped to explain Defendant Ibarra’s
violent response to the Victim’s verbal challenge, it also helped the jury evaluate witness
credibility. Several witnesses provided conflicting and incomplete accounts of what had
happened when interviewed by the police. Their testimonies at trial were not consistent
with their statements. Absent the gang evidence, the jury could have concluded that the
witnesses were lying. In fact, defense counsel encouraged the jurors to do just that. The
officer’s testimony provided an explanation for the conflicting witness testimonies. She
explained that victims and witnesses to gang crimes normally fail to cooperate with law
enforcement because they fear the gang member or gang will retaliate against them
and/or their families. In fact, gang members go to great lengths to instill this fear in the
community. Here, witnesses testified to their fear.
Regarding Evidence Code section 352, although gang evidence may be
prejudicial, here the probative value far outweighed any prejudicial effect. “‘“Unless the
dangers of undue prejudice, confusion, or time consumption ‘“substantially outweigh”’
the probative value of relevant evidence, a[n Evidence Code] section 352 objection
should fail. [Citation.] ‘“The ‘prejudice’ referred to in Evidence Code section 352
applies to evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues. In applying
[Evidence Code] section 352, ‘prejudicial’ is not synonymous with ‘damaging.’”
[Citation.]’ [Citation.] [¶] The prejudice that [Evidence Code] section 352 ‘“is designed
to avoid is not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence.” [Citations.] “Rather, the statute uses the word in its
14
etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.
[Citation.]” [Citation.]’ [Citation.] In other words, evidence should be excluded as
unduly prejudicial when it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate the point upon which it
is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In
such a circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose.” [Citation.]’ [Citation.]”
(People v. Scott (2011) 52 Cal.4th 452, 491.)
Given the facts in this case, the gang evidence was mild compared to the actual
crimes. While Defendants describe Defendant Ibarra as acting “rashly, impulsively, or
without careful consideration and thus without deliberation or premeditation,” the record
does not support such description. (Underlining in original.) According to the record,
Defendant Ibarra turned, walked up to the Victim (who had done nothing more than issue
a verbal challenge) and fired right in his face. He then opened fire on the four others who
had not said one word. There was nothing rash or impulsive about Defendant Ibarra’s
actions. The trial court carefully scrutinized the proffered evidence and correctly found
its prejudicial effect did not outweigh its probative value in establishing motive, intent,
plan, and knowledge. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [evidence of
gang membership is admissible to prove specific intent, means of applying force, or other
issues pertinent to guilt of the charged crime].)
15
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant Sanchez argues that he received ineffective assistance of counsel (IAC)
when his trial counsel failed to file a motion to strike his prior strike convictions under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
In order to establish a claim of IAC, defendant must demonstrate “(1) counsel’s
performance was deficient in that it fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s deficient representation prejudiced
the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings,
defendant would have obtained a more favorable result. [Citations.] A ‘reasonable
probability’ is one that is enough to undermine confidence in the outcome.” (People v.
Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v.
Washington (1984) 466 U.S. 668, 694.) Hence, an IAC claim has two components:
deficient performance and prejudice. (Strickland v. Washington, supra, at pp. 687-688,
693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215.) If the defendant fails to
establish either component, his claim fails.
When a claim of IAC is made on direct appeal and the record does not show the
reason for counsel’s challenged actions or omissions, the conviction must be affirmed
unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412,
426, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn.
10.)
According to Defendant Sanchez, a Romero motion was warranted because
(1) both his prior convictions of possessing a firearm and misdemeanor battery were
16
serious only because they were committed for the benefit of a street gang; (2) he had not
killed anyone, he had not possessed a firearm, and he was convicted of felony murder
only because of the robbery conviction; and (3) he told Defendant Ibarra to calm down
multiple times. Defendant Sanchez contends there was no detriment to filing such
motion, and because the trial court indicated that he “should be given some leniency
because he was not the shooter . . . there is a reasonable probability that had a Romero
motion been made, the trial court would have dismissed the prior conviction alleged
under the three strikes law so that it could impose a more just sentence.”
The trial court’s discretion to strike a prior conviction pursuant to section 1385 is
limited. (Romero, supra, 13 Cal.4th at p. 528.) The trial court’s discretion to strike a
qualifying strike is guided by “established stringent standards” designed to preserve the
legislative intent behind the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th
367, 377.) “[T]he court . . . must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
To begin with, the People point out that the trial court, on its own, could have
chosen to strike Defendant Sanchez’s prior conviction. The People argue that by
claiming IAC, Defendant Sanchez “presumes this Court will infer that the lower court
was unaware of its discretion to strike his prior strike.” We do not. The “trial court is
17
presumed to have been aware of and followed the applicable law” when exercising its
discretion. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Thus, as the People
aptly argue, because the trial court did not dismiss Defendant Sanchez’s prior on its own
motion, “it did not find [Defendant Sanchez] or his circumstances to be so extraordinary
as to take him outside the purview of the Three Strikes Law.”
Notwithstanding the above, we will assume that counsel’s performance was
deficient in not filing a Romero motion. Thus, we consider whether Defendant Sanchez
was prejudiced by the deficient representation, i.e., was there a reasonable probability
that, but for counsel’s failings, defendant would have obtained a more favorable result?
We conclude that there was not. Defendant Sanchez was an active gang member who
had been convicted of possession of a firearm for the benefit of his gang, who had
committed a prior offense with Defendant Ibarra, again for the benefit of their gang, who
willing assisted Defendant Ibarra in the armed robbery of five young unarmed men, late
at night, in a deserted park, who followed Defendant Ibarra when he turned around and
shot the Victim, and who then warned witnesses not to tell anyone what had happened.
Defendant Sanchez does not fit the description of a defendant who should be treated as
being outside the purview of the Three Strikes law. While Defendant Sanchez claims
that “the trial court indicated at the sentencing hearing that [he] should be given some
leniency because he was not the shooter,” we find that the only leniency contemplated by
the trial court was to run the sentences concurrently. As the People point out, the trial
court chose to sentence Defendant Sanchez to the upper term on all of the robbery and
18
attempted murder convictions, notwithstanding the fact that any term imposed would be
doubled by the strike.
Given the above, Defendant Sanchez’s IAC claim fails.
IV. CORRECTING THE ABSTRACT OF JUDGMENT
Defendant Ibarra contends, the People concede, and this court agrees that the
abstract of judgment incorrectly lists count 2’s section 12022.53, subdivision (b)
enhancement as “10-LIFE” rather than as “S” for stayed. In fact, the trial court imposed,
as to count 2, a 10-year enhancement, as one of two “lesser gun allegations,” and then
stayed it pursuant to section 12022.53, subdivision (f). The sentencing minute order
accurately reflects this. Thus, we direct the trial court to correct the abstract of judgment
to reflect the stayed term and to forward a certified copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation. This court has the
authority to order the abstract of judgment corrected to conform to the trial court’s oral
pronouncement of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 385-386.)
V. SECTION 654
Defendant Sanchez was sentenced to 10 years (the upper term of 5 doubled to 10
for the strike prior) for each of the five robbery convictions and 18 years (9 doubled) for
each of the four attempted murders, all of which to run concurrent to a term of 50 years to
life (25 doubled) for the murder of the Victim, and a consecutive one-year term for the
firearm allegation. He contends, the People concede, and we agree that the trial court
should have stayed the terms on the robberies.
19
When a court imposes a term for felony murder, it cannot impose a term for the
underlying felony offense. (§ 654; People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315
[Fourth Dist., Div. Two], overruled on other grounds as stated in People v. Rodriquez
(2012) 55 Cal.4th 1125, 1137, fn. 8.) This is because the underlying felony is a
statutorily defined element of the crime of felony murder, and is thus the same act which
makes the killing first degree murder. (People v. Sanchez, supra, at p. 1315.)
Furthermore, section 654 bars punishment for both a greater offense that is found by the
jury to be a natural and probable consequence of an underlying felony, and that
underlying felony itself. (People v. Bradley (2003) 111 Cal.App.4th 765, 769-772.)
Here, because Defendant Sanchez was found guilty of felony murder committed during
the robbery of the Victim, and the attempted murders of the four others as a natural and
probable consequence of the robbery of each one, the trial court could impose only one
term for each victim, i.e., the one corresponding to the crime that carried the greater
punishment. Thus, the trial court should have stayed the terms on the robbery
convictions.
VI. DISPOSITION
The superior court is directed to issue an amended abstract of judgment for
Defendant Ibarra to reflect that as to count 2, the 10-year enhancement under section
12022.53, subdivision (b), is stayed pursuant to section 12022.53, subdivision (f). The
superior court is also directed to modify the judgment as to Defendant Sanchez to stay the
terms on his robbery convictions pursuant to section 654 and to amend the abstract of
judgment accordingly. The court is further instructed to forward certified copies of each
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defendant’s amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, each defendant’s judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.
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