People v. Lopez CA2/6

Filed 4/20/16 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B262622
(Super. Ct. No. VA071747)
Plaintiff and Respondent, (Los Angeles County)
v.
ELEOBARDO LOPEZ,
Defendant and Appellant.
Eleobardo Lopez appeals a March 11, 2015 order resentencing him to life
plus 90 years four months state prison following his conviction by jury for two counts of
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kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) , 17 counts of false
imprisonment (§ 236), and 17 counts of robbery (§ 211) with firearm enhancements
(§§ 12022, subd. (a)(1); 12022.53, subd. (b)) and a great taking enhancement (property
exceeding $50,000 in value; (former § 12022.6, subd. (a)). We vacate the false
imprisonment conviction on count 37 because it is a lesser included offense to count 1 for
kidnapping for robbery. (See e.g., People v. Chacon (1995) 37 Cal.App.4th 52, 65.)
There are clerical errors in the sentencing minute order and abstract of judgment. We
direct the superior court clerk to correct the March 11, 2015 sentencing minute order and
abstract of judgment to reflect that: (1) the one-year firearm enhancement (§ 12022, subd.
(a)(1)) on count 1 for kidnapping for robbery was stayed; (2) the trial court imposed a
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All statutory references are to the Penal Code unless otherwise stated.
one-year taking enhancement (taking in excess of $50,000; (former § 12022.6, subd. (a))
on count 1 for kidnapping for robbery; (3) the conviction and eight month sentence on
count 37 for false imprisonment is vacated; and (4) a five year upper term was imposed
on count 19 for robbery and stayed pursuant to section 654. Appellant's sentence is
reduced to life plus 89 years eight months state prison. As modified, the judgment is
affirmed.
Procedural History
In 2002, appellant and two cohorts robbed a food warehouse at gunpoint,
forced 17 employees into the bathroom, and took seven pallets of baby formula.
Appellant ordered two employees (forklift operators) to move the pallets consisting of
$82,034.40 worth of baby formula.
Appellant was convicted of two counts of kidnapping to commit robbery
(counts 1-2; § 209, subd. (b)(1)), 17 counts of false imprisonment (counts 3-16, 18, 37-
38; § 236), and 17 counts of robbery (counts 19-34, 36; § 211.) On each count, the jury
returned true findings that appellant personally used a firearm (§ 12022.53, subd. (b)) and
a principal was armed with a firearm (§ 12022, subd. (a)(1)). On the aggravated
kidnapping counts (count 1-2) and robbery counts, the jury found that the property taking
exceeded $50,000 (former § 12022.6, subd. (a)). The trial court dismissed the conviction
on count 2 for kidnapping for robbery based on insufficiency of the evidence and granted
a judgment of acquittal on three robbery counts (counts 21, 22 & 29). Appellant was
sentenced to life plus 90 years four months state prison.
In 2008, we affirmed the conviction in an unpublished opinion. (B196287.)
In 2014, appellant filed a habeas petition on the theory that section
12022.53 firearm enhancements were erroneously imposed on the false imprisonment
counts. (See § 12022.53, subd. (a) [enhancement applies only to certain enumerated
felonies].) We issued an order to show cause returnable to the trial court. (B255120.)
On March 11, 2015, appellant was resentenced to life plus 90 years four months state
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prison based on an indeterminate term of life plus 11 years, plus a consecutive
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determinate term of 79 years four months.
Count 1- One-Year Firearm Enhancement
Appellant argues that the sentencing minute order and abstract of judgment
incorrectly state that a one-year firearm enhancement (§ 12022, subd. (a)(1)) was
imposed on count 1 for kidnapping to commit robbery in addition to the 10 year
enhancement for personal use of a firearm (§ 12022.53, subd. (b)). Where a 10 year
firearm enhancement is imposed pursuant to section 12022.53, subdivision (b), all lesser
firearm enhancements must be stayed. (§ 12022.53, subd. (f); People v. Gonzalez (2008)
43 Cal.4th 1118, 1129-1130.) At the resentencing hearing, the trial court said that the
one-year firearm enhancement "is going to be stayed."
The sentencing minute order and abstract of judgment erroneously state that
the section 12202, subdivision (a)(1) firearm enhancement was not stayed. Appellant
argues, and the Attorney General concedes, that the oral pronouncement of judgment
controls. (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) We order that the March
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The trial court calculated the new sentence as follows: On count 1 for kidnapping for
robbery, appellant was sentenced to life plus 10 years for personal use of firearm (§
12022.53, subd. (b)), plus one year on the great taking enhancement (former § 12022.6,
subd. (a)(1)). The trial court imposed and stayed a one-year firearm enhancement (§
12022, subd. (a)(1)) for an indeterminate term of life plus 11 years on count 1.
Appellant was ordered to serve a consecutive 79-year determinate term based on
the following sentence calculation: Selecting count 20 (robbery) as the principal term,
the trial court sentenced appellant to the upper term of five years plus 10 years on the
firearm enhancement (§ 12022.53, subd. (b)(1)), plus one year on the great taking
enhancement (former § 12022.6, subd. (a)(1)). A five year upper term was imposed on
count 19 (robbery) and stayed. (§ 654.) On the 12 remaining robbery counts (counts 23-
28, 30-34, 36) appellant was sentenced to one year (one-third the midterm) plus three
years four months on the firearm enhancement (one-third the midterm; § 12022.53, subd.
(b)). On the 17 false imprisonment counts (counts 3-16, 18, and 37-38), appellant was
sentenced to eight months (one third the midterm) and the firearm enhancement (§
12022.53, subd. (b)) was stayed on each count.
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11, 2015 minute order and abstract of judgment be corrected to reflect the oral judgment
of the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
Count 37 - False Imprisonment
Appellant contends, and the Attorney General agrees, that the conviction on
count 37 for false imprisonment must be vacated because it is a lesser included offense to
count 1, kidnapping for robbery. Appellant was convicted of kidnapping for robbery
(count 1) and false imprisonment (count 37) of the same victim (Jose Olmedo) during the
course of a single criminal transaction. When a defendant is convicted of kidnapping, he
may not be convicted or sentenced on the lesser included offense of false imprisonment
of the same victim. (People v. Chacon, supra, 37 Cal.App.4th at p. 65; People v.
Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Ratcliffe (1981) 124
Cal.App.3d 808, 819-820.)
Count 1 - Great Taking Enhancement
The Attorney General argues that the sentencing minute order erroneously
states that the great taking enhancement (former §12022.6, subd. (a)) on count 1 was
stayed. The trial court did not stay the one-year enhancement at the oral pronouncement
of judgment. The sentencing minute order and abstract of judgment should be corrected
to so reflect.
Count 19 - Robbery
Appellant was also convicted on count 19 for robbery. At the resentencing
hearing, the trial court stated that "I'm imposing the high term of five years, and that is
stayed pursuant to Penal Code section 654." The abstract of judgment makes no mention
of the count 19 robbery conviction and sentence.
Conclusion
Appellant was erroneously sentenced to eight months (one-third the
midterm) on count 37 for false imprisonment (a lesser included offense of count 1 for
kidnapping). We accordingly reduce the aggregate sentence to life plus 89 years eight
months state prison. The superior court clerk is directed to amend the March 11, 2015
minute order and abstract of judgment to reflect that: (1) the one-year firearm
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enhancement (§ 12022, subd. (a)(1)) on count 1 for kidnapping by robbery was stayed;
(2) the conviction on count 37 for false imprisonment was vacated; (3) that a one-year
taking enhancement (former § 12022.6, subdivision (a)) was imposed on count 1; and (4)
a five year upper term sentence was imposed on count 19 for robbery and stayed pursuant
to section 654. The clerk of the superior court shall forward certified copies of the
amended sentencing minute order and abstract of judgment to the Department of
Corrections and Rehabilitation to reflect that the total aggregate sentence is life plus a
consecutive determinate term of 89 years eight months state prison. As modified the
judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Lori Ann Fournier, Judge
Superior Court County of Los Angeles
______________________________
Christopher Nalls, under appointment by the Court of Appeals, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney
General, for Plaintiff and Respondent.