Filed 5/22/13 P. v. Vizcarra CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061878
Plaintiff and Respondent,
v. (Super. Ct. No. JCF25950)
JUAN JOSE VIZCARRA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher
J. Plourd, Judge. Reversed in part with directions; affirmed in part as modified.
Buckley & Buckley and Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Michael Pulos,
Deputy Attorneys General, for Plaintiff and Respondent.
In this gang-related stabbing case, a jury convicted Juan Jose Vizcarra─who was a
member of the Chicali Brazas (Chicali) criminal street gang in Brawley, California─of (1) assaulting Jesus Zermeno with a deadly weapon, a knife (count 2: Pen. Code, § 245,
subd. (a)(1)) (undesignated statutory references will be to the Penal Code); and (2)
attempting to dissuade a witness, Zermeno, in violation of section 136.1, subdivision
(a)(2) (hereafter section 136.1(a)(2)) (count 3). The jury found Vizcarra not guilty of
attempting to willfully, deliberately, and with premeditation murder Zermeno (§§ 187,
subd. (a), 664) as charged in count 1.
The jury found true a count 2 allegation that Vizcarra committed assault with a
deadly weapon for the benefit of, at the direction of, or in association with a criminal
street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the court found true a
count 2 allegation that Vizcarra had suffered a strike prior (§ 667, subds. (b)-(i)). A
strike prior allegation was not included in count 3 of the information.
The court sentenced Vizcarra in this case (No. JCF25950) to an aggregate prison
term of 15 years consisting of (1) the upper term of four years for his count 2 conviction
of assault with a deadly weapon, doubled to eight years under the Three Strikes law as a
result of the court's true finding on the count 2 strike prior allegation; plus (2) a
consecutive middle term of two years for his conviction of attempting to dissuade a
victim or witness; and (3) a five-year term for the gang enhancement.1 During the same
hearing, the court also sentenced Vizcarra to concurrent terms in two other cases: one—
1 As discussed, post, Vizcarra claims, and the Attorney General agrees, the abstract of judgment contains two errors. First, it erroneously indicates that Vizcarra's count 2 conviction was a conviction for attempted murder, rather than for assault with a deadly weapon. Second, the abstract does not show the gang enhancement allegation was found true only with respect to count 2.
2 case No. JCF25997 (hereafter the jail stabbing case)—involving an assault with a deadly
weapon that he committed while in custody for the present case, and another—case No.
JCF23935 (hereafter the probation revocation case)—involving revocation of probation
granted to him following his prior robbery conviction.
Vizcarra appeals, contending (1) there is insufficient evidence to sustain his count
3 conviction of attempting to dissuade a victim or witness (§ 136.1(a)(2)) because,
although the evidence may show he attempted to influence the content of Zermeno's
testimony, there is no evidence he attempted to prevent or dissuade Zermeno from going
to court, and, thus, there is no evidence he attempted to prevent Zermeno from testifying;
(2) the abstract of judgment must be corrected (a) to reflect that he was convicted of
assault with a deadly weapon (count 2) and not attempted murder (count 1), and (b) to
clarify that the gang enhancement allegation was found true only with respect to count 2;
and (3) the court erred in both the instant case and the jail stabbing case by calculating his
custody credits with the 15 percent limitation under section 2933.1, rather than under
section 4019, and, thus, he should have been awarded 280 days of work time credit in
each case.
The Attorney General argues the evidence is sufficient to sustain Vizcarra's count
3 conviction of attempting to dissuade a victim or witness, but agrees the abstract of
judgment contains two errors that should be corrected in the manner Vizcarra requests.
The Attorney General also agrees the custody credits in both this case and the jail
stabbing case should have been calculated under section 4019, and, thus, the judgment in
this case should be modified as Vizcarra requests. However, the Attorney General asserts
3 this court should deny Vizcarra's request to modify the custody credit determination in
the unrelated jail stabbing case because (among other things) he has not filed a notice of
appeal in that case. In addition, the Attorney General claims Vizcarra should have been
sentenced to 22 years, not 15 years, in prison.
We conclude the evidence is sufficient to sustain Vizcarra's count 3 conviction of
attempting to dissuade a victim or witness. We also conclude the abstract of judgment
must be corrected (1) to reflect that he was convicted in this case of assault with a deadly
weapon, not attempted murder; and (2) to clarify that the gang enhancement allegation
was found true only with respect to count 2. Furthermore, we modify Vizcarra's sentence
in this case to award him a total of 840 days of presentence custody credit, consisting of
560 actual days of credit plus 280 days of conduct credit.
In addition, we conclude the court erred and rendered an unauthorized sentence by
failing to double under the Three Strikes law the two-year sentence it imposed for
Vizcarra's count 3 conviction. Accordingly, we reverse the sentence as to count 3 and
remand this case for resentencing subject to the court's exercise of its section 1385,
subdivision (a) power to strike the prior conviction finding.
Finally, we conclude the court erred and rendered an unauthorized sentence by
failing to impose a five-year enhancement under section 667, subdivision (a)(1) (hereafter
section 667(a)(1)). Accordingly, we modify the judgment to impose a five-year
consecutive term for the serious felony prior conviction under section 667(a)(1). In all
other respects, we affirm the judgment.
4 FACTUAL BACKGROUND2
Vizcarra, whose Chicali gang moniker was "Shorty," stabbed Zermeno─who was
affiliated with a rival street gang─twice in the ribs with a knife, causing him to suffer a
collapsed lung. Zermeno was hospitalized for about two weeks. At the time of the
assault, Vizcarra was accompanied by Jeffrey Ruiz, whose Chicali gang moniker was
"Speedy" and who testified at trial that he saw Vizcarra stab Zermeno.
While in custody, Vizcarra made three phone calls─one to his fellow Chicali gang
member Fernando Flores and the others to Chicali gang associates Carlos Angulo and
Walter Lopez─that are pertinent to this appeal. Specifically, in the first phone call,
Vizcarra called Angulo. Vizcarra told Angulo: "Ask for [Zermeno], man. Find him,
man. Do that favor for me, man, and tell him that when he goes to court to say, 'No.'
You know what I mean?" Angulo replied, "Yes." After briefly discussing something
else, Vizcarra told Angulo: "Hey, but—try to find that damn Jesus Zermeno, man. All
right?" Angulo responded, "All right, then."
In the second phone call, Vizcarra called Lopez and asked him for a "favor."
Vizcarra asked Lopez whether he knew Zermeno, and Lopez indicated he did not.
Vizcarra explained, "Uh, well the fucker is saying . . . Supposedly, that he is snitching,
man." Lopez said, "Really?" Lopez then told Vizcarra, "Wait, hold on, I'm going to
write that shit down, man." Vizcarra spelled Zermeno's name for Lopez, who then said
2 As Vicarra's contentions on appeal are narrow in scope, and his count 3 insufficiency-of-the-evidence claim rests on an erroneous legal premise (discussed, post), our summary of the factual background is very brief. 5 he would "see what's up." After informing Lopez that he (Vizcarra) was being charged
with attempted murder, Vizcarra told Lopez: "That's why I want you to [stutters] do that
favor for me, man." Lopez responded affirmatively. Vizcarra then said, "Find that
fucker, man," adding, "We got court on Monday, fool." Lopez replied, "All right, fool."
Vizcarra then gave instructions to Lopez about what Zermeno should say in court:
"And then, well, if you can get a hold of him before Monday it would be great, man. And just tell him that if he is going to go to court, man, to just say that it wasn't us. You know what I mean? That he should say, 'No—.'"
Interrupting Vizcarra, Lopez replied, "Yeah." Vizcarra added that Zermeno
should say, "[I]t's the wrong people.'" Lopez indicated he would do this favor for
Vizcarra.
In the third phone call, Vizcarra called Flores, whom he called "Flako." Vizcarra
asked Flores whether he knew Zermeno, and Flores replied he did not. Vizcarra told
Flores, "[I]f [Zermeno] goes to court he should say, 'No.' You know what I mean, man?"
Flores replied, "Yes." Vizcarra added, "That it wasn't us, dog." Flores responded, "Yeah,
I know. I know." Vizcarra further explained that he "already told [Lopez]" and that
Lopez had written down Zermeno's name. Flores confirmed Zermeno's name and told
Vizcarra he had written down Zermeno's name. Vizcarra then told Flores: "All right,
dog. Just figure that shit out, dog. All right? . . . Do that favor for me, man." Flores
reassured Vizcarra, saying, "Yeah, don't trip." (1CT 226)!
Zermeno, the victim in this case, testified for the prosecution that, on the night in
question, two Hispanic men speaking in Spanish and brandishing knives ran towards him
6 and one stabbed him twice in the ribs. At trial, Zermeno indicated that he did not know
the identity of the men, and he could not identify Vizcarra as the person who stabbed
him.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE (COUNT 3: § 136.1(A)(2))
Vizcarra first contends there is insufficient evidence to sustain his count 3
conviction of attempting to dissuade a victim or witness (§ 136.1(a)(2)) because, although
the evidence may show he attempted to influence the content of Zermeno's testimony,
there is no evidence he attempted to prevent or dissuade Zermeno from going to court;
and, thus, there is no evidence he attempted to prevent Zermeno from testifying.
Vizcarra's count 3 insufficiency-of-the-evidence claim rests on his contention that section
136.1(a)(2) "is limited solely to those instances where a defendant attempts to prevent or
dissuade a witness [or victim] from giving any testimony." Vizcarra's contentions are
unavailing.
A. Applicable Legal Principles
1. Statutory Construction
Our decision requires us to resolve an issue of statutory construction governed by
well-established principles. The California Supreme Court has explained that "[t]he
objective of statutory construction is to determine the intent of the enacting body so that
the law may receive the interpretation that best effectuates that intent. [Citation.] 'We
first examine the words themselves because the statutory language is generally the most
reliable indicator of legislative intent. [Citation.] The words of the statute should be
7 given their ordinary and usual meaning and should be construed in their statutory
context.' [Citation.] If the plain, commonsense meaning of a statute's words is
unambiguous, the plain meaning controls." (Fitch v. Select Products Co. (2005) 36
Cal.4th 812, 818.)
"The interpretation of a statute presents a question of law subject to de novo
review on appeal." (People v. Wills (2008) 160 Cal.App.4th 728, 736; Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1332.)
2. Substantial evidence standard of review
In assessing Vizcarra's challenge to the sufficiency of the evidence, we also apply
the substantial evidence standard of review. (See People v. Perez (1992) 2 Cal.4th 1117,
1124.) Under that standard of review, we view the evidence "in the light most favorable
to the judgment below to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson
(1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
The Court of Appeal recently explained that, "when a criminal defendant claims
insufficiency of the evidence on a particular element of the crime of which he was
convicted, we presume the evidence of that element was sufficient, and the defendant
bears the burden of convincing us otherwise. To do so, the defendant . . . must set forth
in his opening brief all of the material evidence on the disputed element in the light most
favorable to the prosecution, and then must persuade us that that evidence cannot
8 reasonably support the jury's verdict." (People v. Battle (2011) 198 Cal.App.4th 50, 62;
see also People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.)
The uncorroborated testimony of a single witness is sufficient to sustain a
conviction or true finding on an enhancement allegation, "unless the testimony is
physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284,
296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate
the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.
Jones (1990) 51 Cal.3d 294, 314.)
B. Analysis
We are asked to construe the meaning of section 136.1(a)(2), which, as pertinent
here, provides that "any person" is guilty of a public offense when he or she "[k]nowingly
and maliciously attempts to prevent or dissuade any witness or victim from attending or
giving testimony at any trial . . . ."3 (Italics added.) Giving to the foregoing italicized
words their ordinary and usual meaning, we conclude that section 136.1(a)(2) plainly and
unambiguously prohibits any person from knowingly and maliciously attempting to
prevent or dissuade a witness or victim from either (1) attending—that is, going to and
being present at—a trial; or (2) giving some testimony in the event the witness or victim
3 Section 136.1(a)(2) provides in full: "(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] . . . [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." (Italics added.)
9 attends and testifies at the trial. As used in section 136.1(a)(2), the word "testimony" is
unqualified, indicating a legislative intent to punish any knowing and malicious attempt
to prevent a witness or victim from "giving testimony" in any amount or form "at any
trial, proceeding, or inquiry authorized by law." Thus, for example, in a case in which a
victim might be called to testify at a trial regarding three separate issues, a knowing and
malicious attempt to prevent or dissuade the victim from "giving testimony" on any one
of those issues would be a violation of section 136.1(a)(2) under the broad and plain
language of that statute. In a prosecution for such a violation, it would be immaterial that
the defendant made no attempt to prevent the victim from giving any testimony at all.
Had the Legislature intended to more narrowly define the term "giving testimony" to
mean "giving any and all testimony," it could easily have done so.
As there is no ambiguity or uncertainty in the broad language of section
136.1(a)(2), and the Legislature is presumed to have meant what it said, the plain and
commonsense meaning of the words of the statute controls and we need not resort to
legislative history to determine its meaning. (See People v. Cochran (2002) 28 Cal.4th
396, 400-401; Fitch v. Select Products Co., supra, 36 Cal.4th at p. 818.)
In support of his claim that substantial evidence does not support his conviction
under section 136.1(a)(2), Vizcarra relies principally on another statute—section 1374—
4 Section 137, which consists of six subdivisions, provides in full: "(a) Every person who gives or offers, or promises to give, to any witness, person about to be called as a witness, or person about to give material information pertaining to a crime to a law enforcement official, any bribe, upon any understanding or agreement that the testimony of such witness or information given by such person shall be thereby influenced is guilty 10 and People v. Womack (1995) 40 Cal.App.4th 926 (Womack), People v. Fernandez
(2003) 106 Cal.App.4th 943 (Fernandez), and People v. Hallock (1989) 208 Cal.App.3d
595 (Hallock); and he asserts that "[u]nder California law . . . there is an important
distinction between attempted influencing of content and attempted prevention of
testimony. Section 137 [(he maintains)] punishes attempts to influence the nature of the
testimony a witness gives while section 136.1[(a)(2)] is limited solely to those instances
where a defendant attempts to prevent or dissuade a witness from giving any testimony."
(Italics added.) Vizcarra also asserts that as "there was no evidence that he was
attempting to prevent o[r] dissuade [Zermeno] from giving any testimony," perhaps he
of a felony. [¶] (b) Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true material information pertaining to a crime from, a law enforcement official is guilty of a felony, punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. [¶] As used in this subdivision, 'threat of force' means a credible threat of unlawful injury to any person or damage to the property of another which is communicated to a person for the purpose of inducing him to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official. [¶] (c) Every person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor. [¶] (d) At the arraignment, on a showing of cause to believe this section may be violated, the court, on motion of a party, shall admonish the person who there is cause to believe may violate this section and shall announce the penalties and other provisions of this section. [¶] (e) As used in this section 'law enforcement official' includes any district attorney, deputy district attorney, city attorney, deputy city attorney, the Attorney General or any deputy attorney general, or any peace officer included in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2. [¶] (f) The provisions of subdivision (c) shall not apply to an attorney advising a client or to a person advising a member of his or her family." 11 (Vizcarra) could have been prosecuted under section 137, "but he was not guilty of
violating section 136.1[(a)(2)]."
Vizcarra's reliance on Womack, Hallock and Fernandez is unavailing because (as
the Attorney General correctly points out) none of those cases squarely addresses the
issue presented here of whether section 136.1(a)(2) is violated by an attempt to prevent or
dissuade a witness or victim from giving some, but not any and all, testimony at a trial.
Womack involved the issue of whether the defendant's conviction of attempted murder
was inconsistent with his conviction of a violation of section 137. (Womack, supra, 40
Cal.App.4th at pp. 929, 933-934.) To the extent Womack suggests in dictum that section
136.1(a)(2) only applies to an attempt to prevent a witness or victim from testifying
altogether, we decline to follow that dictum for reasons discussed, ante. (See Womack, at
p. 931 [stating that § 136.1 punishes attempts to "[p]revent[] or dissuad[e] a witness from
testifying altogether"].) Hallock addressed the issue of whether the defendant was
improperly and prejudicially instructed under former section 136.1; it did not address the
issue presented here. (See Hallock, supra, 208 Cal.App.3d at pp. 605-607.) Fernandez
involved an appeal from a conviction under section 136.1, subdivision (b)(1),5 and
addressed the issue of "whether an attempt to dissuade a witness from making a
5 Section 136.1, subdivision (b)(1), which is not at issue in the instant appeal, provides: "[E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." 12 'report . . . to any judge' includes an attempt to influence a victim's testimony at a
preliminary hearing." (Fernandez, supra, 106 Cal.App.4th at pp. 945, 946-947.)
Vizcarra suggests the interpretation of section 136.1(a)(2) we have adopted─that
is, as applicable here, it prohibits any person from knowingly and maliciously attempting
to prevent or dissuade a witness or victim from either (1) attending a trial, or (2) giving
some testimony in the event the witness or victim attends and testifies at the trial─renders
section 137 surplusage. !(AOB 13-14)! Vizcarra also suggests he could have been
prosecuted under section 137, and thus he was improperly charged under section
136.1(a)(2), stating that "[p]erhaps [he] could have been prosecuted for his remarks under
section 137, but he was not guilty of violating section 136.1."6 !(AOB 16)! The Attorney
General rejects Vizcarra's suggestions and asserts section 136.1(a)(2) "was the correct
charge."
Vizcarra's suggestions are unavailing. First, he does not identify which of the
various subdivisions of section 137 (see fn. 4, ante) might have applied under the factual
circumstances presented in this case. Subdivision (a) of section 137 punishes "giv[ing] or
offer[ing], or promis[ing] to give, to any witness, person about to be called as a witness,
or person about to give material information pertaining to a crime to a law enforcement
official, any bribe, upon any understanding or agreement that the testimony of such
witness or information given by such person shall be thereby influenced." (Italics added.)
6 Citing Hallock, supra, 208 Cal.App.3d at page 607, Vizcarra also asserts he "may not be subject to retrial for the conduct that was the subject of this prosecution on the theory that he violated section 137." 13 This subdivision clearly has no application here, as there is no evidence Zermeno was
given, offered, or promised any bribe. Subdivision (b) of that section, a violation of
which is a felony, punishes (among other things) "attempts by force or threat of force or
by the use of fraud to induce any person to give false testimony or withhold true
testimony." (Italics added.) Subdivision (c), a violation of which is a misdemeanor,
punishes (among other things) "knowingly induc[ing] another person to give false
testimony or withhold true testimony not privileged by law." (Italics added.)
We need not decide whether Vizcarra properly could have been charged under
subdivisions (b) or (c) of section 137. Assuming for the purpose of analysis that Vizcarra
properly could have been charged under one of those subdivisions, we reject his
suggestion that our interpretation of section 136.1(a)(2) renders section 137 surplusage.
The elements the prosecution must prove to establish a violation of section 136.1(a)(2)
are not identical to the elements it must prove to establish a violation of section 137 under
either subdivision (b) or subdivision (c). For example, whereas the prosecution must
prove under section 136.1(a)(2) that the defendant acted "[k]nowingly and maliciously"
(italics added), it must prove under subdivision (b) of section 137 that the defendant
committed the prohibited attempt "by force or threat of force or by the use of fraud," and
under subdivision (c) of that section it must prove the defendant acted "knowingly" but is
not required to prove he or she acted maliciously or by force, threat of force, or the use of
fraud. Also, the prescribed punishments are different. As noted, violations of sections
136.1(a)(2) and 137, subdivision (b) are punishable as felonies; violations of section 137,
subdivision (c), are punishable as misdemeanors. It appears from an analysis of the
14 differing essential elements of the foregoing offenses and the respective prescribed
punishments, that the Legislature intended to provide the People with charging
alternatives to further the Legislature's intent to impose criminal liability for any attempt
to intimidate witnesses or victims who may testify, especially where (as here) such
attempted intimidation stems from gang-related activities.
Turning to the evidence in the trial record, we next conclude that substantial
evidence in the form of Vizcarra's three recorded jailhouse telephone calls supports his
conviction under section 136.1(a)(2) by establishing that—through his intermediary
Chicali gang agents Angulo, Lopez, and Flores—he knowingly and maliciously
attempted to prevent or dissuade Zermeno from giving trial testimony identifying
Vizcarra as the person who stabbed him. Specifically, the evidence shows Vizcarra
instructed Angulo during the first telephone call to find "that damn [Zermeno]" and "tell
him that when he goes to court to say, 'No.'" The recording of Vizcarra's second call
shows he told Lopez that Zermeno was "snitching" and he (Lopez) should "[f]ind that
fucker" and "just tell him that if he is going to go to court, man, to just say that it wasn't
us. You know what I mean?" The recording of the third call shows Vizcarra told Flores,
"[I]f [Zermeno] goes to court he should say, 'No,'" and then added, "That it wasn't us,
dog."
That Vizcarra's foregoing instructions to his gang intermediaries constituted a
knowing and malicious attempt to intimidate Zermeno and prevent or dissuade him from
identifying Vizcarra at trial, is further shown by the testimony of the prosecution's gang
expert, Christian Romualdo, a Brawley Police Department detective. Detective
15 Romualdo testified that gang members often attempt to intimidate victims and witnesses
in order to dissuade them from testifying and identifying those gang members so that they
can "get away with" crimes they have committed. Gang members accomplish such
intimidation by "[s]ending messages, threats of violence, profanity [and] threats of
death." When asked how they send messages, Detective Romualdo stated, "Oftentimes
they'll send a fellow gang member, somebody that they can trust, somebody that they
know will . . . complete the threat." He indicated that this has occurred in almost every
one of the gang cases he has investigated.
Detective Romualdo, who is fluent in Spanish, indicated that he listened to the
recordings of the three telephone calls Vizcarra made from jail to Angulo, Lopez, and
Flores. On cross-examination, Detective Romualdo first testified that the purpose of
Vizcarra's phone calls was to attempt to prevent Zermeno from coming to court to testify
in this matter, but he acknowledged Vizcarra did not expressly ask anyone to do that.
Upon further cross-examination, Detective Romualdo opined that Vizcarra was
attempting to dissuade Zermeno from identifying Vizcarra in court as the stabber.
Based on the foregoing substantial evidence, we conclude any reasonable jury
would find beyond a reasonable doubt that Vizcarra violated section 136.1(a)(2) by
knowingly and maliciously attempting to prevent or dissuade Zermeno, the victim in this
case, from "giving testimony" at trial within the meaning of that statute.
II. ABSTRACT OF JUDGMENT
Vizcarra next contends the abstract of judgment in this case must be corrected (1)
to reflect that he was convicted of assault with a deadly weapon (count 2) and not
16 attempted murder (count 1), and (2) to clarify that the gang enhancement allegation was
found true only with respect to count 2.
The Attorney General agrees, as does this court, that the abstract of judgment
should be corrected in the manner Vizcarra requests. The abstract correctly indicates that
Vizcarra was convicted of count 2, but incorrectly identifies count 2 as "Attempted
Murder." The abstract must be corrected to identify count 2 as "Assault with a Deadly
Weapon."
Regarding the five-year gang enhancement, the abstract correctly indicates that
Vizcarra suffered the imposition of that prison term enhancement under "[Section]
186.22(b)(1)." However, the abstract does not indicate that the gang enhancement
allegation was part of count 2, which charged Vizcarra with assaulting Zermeno with a
deadly weapon, and not part of count 3, which charged him with attempting to dissuade a
victim or witness in violation of section 136.1(a)(2). In support of Vizcarra's claim that
the abstract should be amended to clarify that the gang enhancement allegation was found
true only with respect to count 2, he asserts that the gang enhancement "has important
implications for purposes of determining if a section 136.1 violation is a violent felony"
for purposes of section 667.5, subdivision (c)(20), which provides:
"Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (c) For the purpose of this section, 'violent felony' shall mean any of the following: [¶](20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code."
17 We shall direct the court to amend the abstract of judgment in this case to clarify
that the gang enhancement allegation was found true only with respect to count 2.
III. VIZCARRA'S SENTENCING ERROR CLAIM
Last, Vizcarra contends the court erred in both the instant case and the jail
stabbing case by calculating his presentence custody credits with the 15 percent limitation
under 2933.1, rather than under section 4019, and, thus, he "should have been awarded
280 days of work-time credit in each case." Specifically, he requests that his sentence be
modified "by granting him the proper number of presentence custody credits" in these
two cases, which he asserts is "840 total days credit comprised of 560 actual days of
presentence custody plus 280 days of conduct credit."
The Attorney General agrees the custody credits in both this case and the jail
stabbing case should have been calculated under section 4019, and the judgment in this
case should be modified as Vizcarra requests. However, the Attorney General asserts
this court should deny Vizcarra's request to modify the custody credit determination in
the unrelated jail stabbing case because (among other things) he has not filed a notice of
appeal in that case.
We modify Vizcarra's sentence in this case to award him a total of 840 days of
presentence custody credit, consisting of 560 actual days of credit plus 280 days of
conduct credit. We decline Vizcarra's request to similarly modify his sentence in the jail
stabbing case as he has not filed a notice of appeal in that case. However, as we are
remanding the instant case to the court with directions to amend the abstract of judgment,
18 we shall leave to the discretion of the court the decision whether to similarly modify
Vizcarra's sentence in the jail stabbing case on its own motion.
IV. ATTORNEY GENERAL'S TWO SENTENCING ERROR CLAIMS
In the respondent's brief, the Attorney General claims that the court committed
two sentencing errors in the instant case and thereby imposed an unauthorized sentence.
Specifically, the Attorney General claims that because the court found true the count 2
allegation that Vizcarra had suffered a robbery conviction that was a serious felony strike
prior (§ 667, subds. (b)-(i)), Vizcarra's total prison term sentence should be increased by
seven years from 15 years to 22 years because the court was required, but failed, to (1)
double to four years under the Three Strikes law the two-year sentence it imposed for
Vizcarra's count 3 conviction of attempting to dissuade a victim or witness; and (2)
impose a consecutive five-year serious felony conviction enhancement under section
667(a)(1).7 We agree.
7 Section 667(a)(1) provides: "In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (Italics added.)
19 A. Vizcarra Concedes the Trial Court Erred by Not Doubling the Count 3 Sentence Under the Three Strikes Law Based on Vizcarra's Prior Serious Felony Strike
1. Background
The court found true the count 2 allegation that Vizcarra previously had suffered a
robbery conviction that was a serious felony strike prior (§ 667, subds. (b)-(i); see
§ 1192.7, subd. (c)(19)). However, a similar strike prior allegation was not included in
count 3 of the information. As a result of the court's true finding on the count 2 strike
prior allegation, the court doubled to eight years under the Three Strikes law the four-
year principal prison term it imposed for Vizcarra's count 2 assault-with-a-deadly-
weapon conviction in this case. However, because the strike prior allegation set forth in
count 2 was not also alleged in count 3, the court did not double the two-year subordinate
term it imposed for his count 3 conviction of attempting to dissuade a victim or witness.
2. Analysis
Citing People v. Morales (2003) 106 Cal.App.4th 445 (Morales), Vizcarra
correctly acknowledges in his reply brief that, even though the prior strike conviction
alleged in count 2 was not also alleged in count 3, the court was required, but erroneously
failed, to double under the Three Strikes law the two-year sentence it imposed for
Vizcarra's count 3 conviction based on the court's finding he had suffered the prior strike
conviction. Morales is directly on point and persuasively guides our determination of the
issue presented here. In Morales, a jury convicted the defendant of committing three
felony counts of annoying or molesting a child, as charged in the three-count amended
information. (Id. at p. 447.) The jury also found true count 2 allegations that the
20 defendant had suffered two prior violent felony convictions of child molestation that were
strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). (Morales, at p.
447.) The trial court struck one of the two prior strike findings in the interest of justice
(§ 1385, subd. (a)) and, in sentencing the defendant, doubled under the Three Strikes law
the prison term it imposed for the count 2 conviction, as required by sections 667,
subdivision (e)(1) and 1170.12, subdivision (c)(1). (Morales, at p. 447.) However,
because the information did not allege the prosecution was seeking enhanced recidivist
sentencing under the Three Strikes law as to counts 1 and 3, the trial court did not double
the sentences it imposed as to those counts. (Id. at pp. 447, 455.) The Court of Appeal
reversed the sentence as to counts 1 and 3, and remanded the matter for resentencing,
holding that "once the jury found defendant had previously been convicted of a violent
felony, the sentence as to all counts should have been doubled pursuant to sections 667,
subdivision (e)(1) and 1170.12, subdivision (c)(1), subject to the trial court's exercise of
its section 1385, subdivision (a) power to strike the prior conviction finding."8 (Morales,
at pp. 447-448, italics added.)
8 A trial court may dismiss prior felony conviction allegations in cases prosecuted under the Three Strikes law when dismissal is "in furtherance of justice." (§ 1385, subd. (a); see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In deciding whether to dismiss prior conviction allegations, the 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.)
21 Similarly here, once the court found Vizcarra previously had been convicted of
robbery—a serious felony strike (see §§ 667, subd. (a)(4) & 1192.7, subd. (c)(19))—as
alleged in count 2, the court was required to double his sentence as to all counts,
including count 3, "pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision
(c)(1), subject to the trial court's exercise of its section 1385, subdivision (a) power to
strike the prior conviction finding." (Morales, supra, 106 Cal.App.4th at pp. 447-448;
§§ 667, subds. (e)(1), (f)(1) & 1170.12, subd. (c)(1).) Thus, we conclude the court erred
and rendered an unauthorized sentence by failing to double under the Three Strikes law
the two-year sentence it imposed for Vizcarra's count 3 conviction. Accordingly, we
reverse the sentence as to count 3 and remand this case for resentencing subject to the
court's exercise of its section 1385, subdivision (a) power to strike the prior conviction
finding.
B. The Trial Court Erred by Not Imposing a Mandatory Five-year Enhancement Based on Vizcarra's Prior Serious Felony Conviction
The Attorney General also argues that as a result of the court's finding that
Vizcarra previously had been convicted of robbery as alleged in count 2, the court was
required to impose a five-year enhancement under section 667(a)(1). We conclude the
court erred and rendered an unauthorized sentence by failing to impose a five-year
enhancement under section 667(a)(1).
As pertinent here, section 667(a)(1) provides that "any person convicted of a
serious felony who previously has been convicted of a serious felony in this state . . .
shall receive, in addition to the sentence imposed by the court for the present offense, a
22 five-year enhancement for each such prior conviction on charges brought and tried
separately." (Italics added.) Under this statute, "when the defendant is convicted of a
current serious felony . . . and has been previously convicted of a serious felony, the trial
court must impose a five-year enhancement for each such prior conviction that was
brought and tried separately. The terms of the present offense and each section
667(a)[(1)] enhancement must run consecutively." (People v. Dotson (1997) 16 Cal.4th
547, 553 (Dotson), italics added.) "The trial court has no discretion and the sentence is
mandatory." (People v. Purata (1996) 42 Cal.App.4th 489, 498 (Purata).)
Here, the requirements for imposition of a mandatory five-year enhancement
under section 667(a)(1) are satisfied. Vizcarra was convicted in the current case of
attempting to dissuade a victim or witness from giving testimony (§ 136.1(a)(2)), which
is a serious felony (§§ 667, subd. (a)(4), 1192.7, subd. (c)(37).) The prosecution alleged
he previously had been convicted of robbery, which is also a serious felony (§§ 667,
subd. (a)(4), 1192.7, subd. (c)(19)), and the court found this allegation to be true. On the
foregoing record, we conclude the court was required to impose a consecutive five-year
prison term based on Vizcarra's prior serious felony conviction. (§ 667, subd. (a)(1);
Dotson, supra, 16 Cal.4th at p. 553; Purata, supra, 42 Cal.App.4th at p. 498.)
Vizcarra contends, however, that the trial court was not authorized to impose a
section 667(a)(1) enhancement because such an enhancement was not specifically
charged in the information. Specifically, he contends that, as a matter of federal due
process, the court was precluded from imposing a five-year enhancement under section
667(a)(1) because "no serious felony enhancement allegation was alleged or proved," and
23 "[t]here was no allegation in the Information identifiably giving [him] notice that he
could be found subject to a five-year enhancement for a prior serious felony conviction."
Citing section 1170.1, subdivision (e), Vizcarra also contends he has a statutory right "to
have each specific sentencing enhancement pled and proved."9
These contentions are unavailing. Although the count 2 prior conviction
allegation listed only a statutory section and subdivisions corresponding to the Three
Strikes law—specifically, section 667, subdivisions (b) through (i)—rather than section
667(a)(1), "the imposition of the five-year enhancement for the prior serious felony
conviction [is] part and parcel of the Three Strikes statutory scheme." (People v.
Dominguez (1995) 38 Cal.App.4th 410, 425.) In addition, "it is clear that a valid
accusatory pleading need not specify by number the statute under which the accused is
being charged" (People v. Thomas (1987) 43 Cal.3d 818, 826); it is sufficient that the
pleading identify the factual basis for imposition of an enhanced penalty (People v. Flynn
(1995) 31 Cal.App.4th 1387, 1392-1395; People v. Shoaff (1993) 16 Cal.App.4th 1112,
1117-1118).
Here, the People alleged that Vizcarra "suffered the following prior conviction(s)
of a serious or violent felony," and then identified one prior conviction by court case
number, Penal Code section violated, date of conviction, county and state of conviction,
and court type. Thus, the factual basis for a finding that Vizcarra had a prior serious
9 Section 1170, subdivision (e) provides: "All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."
24 felony conviction was adequately charged. (§ 969;10 People v. Flynn, supra, 31
Cal.App.4th at pp. 1392-1395; People v. Shoaff, supra, 16 Cal.App.4th at pp. 1117-1118;
People v. Ashcraft (1956) 138 Cal.App.2d 820, 825.) Although it would be better
practice for the People to allege the specific statutes under which they seek to enhance a
defendant's sentence, we conclude the information here provided sufficient notice of the
potential five-year enhancement by stating the facts supporting it.
A contrary conclusion is not required by People v. Mancebo (2002) 27 Cal.4th
735, on which Vizcarra relies. In Mancebo, the information charged the defendant with
various sex crimes against multiple victims and alleged firearm use and kidnapping to
support an enhancement under section 667.61. (Mancebo, at p. 740.) At the sentencing
hearing, the trial court sua sponte substituted a multiple-victim circumstance for the
firearm-use allegation to support the enhancement under section 667.61 and to free up the
firearm-use allegation for use to support other enhancements, even though the multiple-
victim circumstance had not been alleged by either statute number or descriptive facts.
(Mancebo, at p. 740.) The Supreme Court affirmed the judgment of the Court of Appeal
reversing the sentence, holding that the trial court erred when it used an unpleaded
multiple-victim circumstance to support an enhanced sentence under section 667.61.
(Mancebo, at pp. 739, 742-745, 754.) "Mancebo thus stands for the limited proposition
that a defendant is entitled to notice of the specific facts that will be used to support an
10 Section 969 provides: "In charging the fact of a previous conviction of felony . . . , it is sufficient to state, 'That the defendant, before the commission of the offense charged herein, was in (giving the title of the court in which the conviction was had) convicted of a felony . . . .'" 25 enhanced sentence. Facts alleged and proved only as part of the substantive crime
charged cannot later be used to support a sentencing enhancement." (People v. Tardy
(2003) 112 Cal.App.4th 783, 789, italics added.) Mancebo is therefore not on point
because Vizcarra's sentence, unlike the Mancebo defendant's, will be enhanced on the
basis of facts that were specifically and separately pleaded and proved for the purpose of
enhancement.
We reject Vizcarra's contention that the separation of powers doctrine precludes
the addition of a five-year enhancement under section 667(a)(1). Specifically, Vizcarra
asserts that the charging function in a criminal prosecution is the sole province of the
executive, and, thus, "[a] rule which allows or requires a Court of Appeal to impose an
uncharged mandatory sentencing enhancement essentially substitutes the Court of Appeal
for the District Attorney in selecting the charges to file in the case." "This," he asserts,
"is a violation of the separation of powers because the judiciary does not have the right or
responsibility to charge a defendant." This contention fails because the People ─ not this
court ─ alleged in the accusatory pleading the specific facts relating to Vizcarra's prior
robbery conviction which, because they were found true by the trier of fact (here, the
court), require the imposition of a five-year sentence enhancement under section
667(a)(1) as a matter of law.
Vizcarra's additional claim that by "failing to charge" a five-year enhancement
under section 667(a)(1), the People have "waived" and are estopped from asserting the
right to seek such an enhancement is unavailing. As already discussed, the People
properly alleged the factual basis for imposition of a section 667(a)(1) enhancement, and
26 the requirements for imposition of a mandatory five-year enhancement under section
667(a)(1) are satisfied.
In sum, based on both the adjudicated fact that Vizcarra had sustained a prior
serious felony conviction as specifically alleged in the information, and his current
conviction of a serious felony in this case, the trial court was required to impose a
consecutive five-year term under section 667(a)(1). (People v. Turner (1998) 67
Cal.App.4th 1258, 1269 ["When the truth of the allegation of conviction of a crime
qualifying for a five-year enhancement has been established, it is mandatory that the
enhancement be imposed."], citing Dotson, supra, 16 Cal.4th at pp. 550, 554-560 &
Purata, supra, 42 Cal.App.4th at p. 498.) Failure to impose the five-year enhancement
under these circumstances results in an unauthorized sentence, which may be addressed
and judicially corrected for the first time on appeal. (Dotson, at p. 554, fn. 6; People v.
Turner, supra, at p. 1269.) It is our duty to correct an unauthorized sentence on appeal
even where, as here, doing so results in a longer prison sentence. (People v. Serrato
(1973) 9 Cal.3d 753, 764, disapproved on other grounds by People v. Fosselman (1983)
33 Cal.3d 572, 583, fn. 1; People v. Solórzano (2007) 153 Cal.App.4th 1026, 1040-
1041.) Also, because imposition of the prior serious felony conviction enhancement is
mandatory, we need not remand for resentencing; instead, we modify the judgment to
impose the consecutive five-year enhancement. (Purata, supra, 42 Cal.App.4th at
pp. 498, 499.)
27 DISPOSITION
In this case, the total award of 644 days of presentence custody credit (consisting
of 560 actual days of credit plus 84 days of conduct credit) is reversed, and the judgment
is modified to award Vizcarra a total of 840 days of presentence custody credit,
consisting of 560 actual days of credit plus 280 days of conduct credit. As a result of the
trial court's erroneous failure to double under the Three Strikes law the two-year sentence
it imposed for Vizcarra's count 3 conviction (§ 136.1(a)(2)), his count 3 sentence is
reversed, and the matter is remanded to the trial court for resentencing subject to the
court's exercise of its section 1385, subdivision (a) power to strike the prior conviction
finding. The judgment is also modified to impose under section 667, subdivision (a)(1), a
five-year consecutive term for Vizcarra's serious felony prior conviction. In all other
respects, the judgment is affirmed.
The superior court is directed to prepare a corrected abstract of judgment
following resentencing (1) to reflect that Vizcarra's count 2 conviction was for assault
with a deadly weapon, not attempted murder; (2) to clarify that the gang enhancement
allegation (§ 186.22, subd. (b)(1)) was found true only with respect to count 2; (3) to
reflect that Vizcarra is awarded a total of 840 days of presentence custody credit,
consisting of 560 actual days of credit plus 280 days of conduct credit; (4) to reflect the
28 imposition under section 667, subdivision (a)(1) of a consecutive five-year prison term
enhancement for Vizcarra's serious felony prior conviction; and (5) to reflect his count 3
sentence following resentencing. The superior court is also directed to forward a certified
copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.