Filed 12/3/15 P. v. Haas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062013
v. (Super.Ct.No. FSB1204873)
JONATHAN HAAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed as modified.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On November 13, 2012, an information charged defendant and appellant Jonathon
Haas with first degree murder under Penal Code1 section 187, subdivision (a). The
information also alleged that defendant personally used a deadly weapon, a knife, in the
commission of the offense under section 12022, subdivision (b)(1).
On August 1, 2014, a jury found defendant not guilty of murder, but guilty of the
lesser included offense of voluntary manslaughter under section 192, subdivision (a).
The jury also found the knife-use allegation true. The trial court subsequently sentenced
defendant to the upper term of 11 years in prison, but stayed the one-year knife-use
enhancement term. The court also imposed a $300 restitution fine and a $300 parole
revocation restitution fine. Defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
On October 26, 2012, defendant stabbed the victim to death after a fight over their
bicycles. That morning, Kaven and Kelli Holland were driving on Highland Avenue;
they saw defendant and the victim holding their bicycles and arguing. Defendant
punched the victim repeatedly as he held onto a bicycle and tried to protect himself. The
victim had his hand up in a defensive manner and tried to push defendant away.
Defendant then stabbed the victim in the chest and ran off. The victim, still clinging to
his bicycle, turned around, staggered away, and collapsed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Kaven and Kelli stopped and got out to help the victim. While Kaven stayed with
the victim, Kelli called 9112 and then got back into the car to follow defendant as he ran
away. Defendant ran across the street, through a parking lot and some businesses.
Defendant’s friend picked defendant up and drove away. The victim subsequently died
from his injuries. Police searched the home defendant was staying in. They found
defendant’s bloody clothing, and a knife in defendant’s shorts. Police found defendant at
a bar that evening and arrested him.
In a post-arrest interview, defendant told an officer that he had stabbed the victim
by accident. Defendant said that he was riding his bicycle when he saw the victim, who
had previously been hanging out around the area. Defendant approached the victim to
tell him to stay away from defendant’s house. Defendant claimed that after he finished
talking to the victim, the victim initially left. The victim, however, stopped, turned back
around, and attacked defendant with what looked like a bicycle pump. Defendant stated
that he defended himself by swinging the knife at the victim. Defendant claimed that he
did not know how the folding knife’s blade came to be exposed.
DISCUSSION
A. THE TRIAL COURT ERRED IN STAYING DEFENDANT’S
SENTENCE ON THE KNIFE-USE ENHANCEMENT
Defendant contends that the enhancement under section 12022, subdivision (b) for
personal use of a deadly or dangerous weapon in the commission of a felony should have
2 The 911 call was played for the jury.
3 been stricken, not stayed, under California Rules of Court, rule 4.420 (“Rule 4.420”).
The People agree that the trial court erred in staying the sentence. However, the People
argue this case should be remanded to the trial court for the court to strike or impose the
sentence. We agree with defendant and strike the enhancement.
1. BACKGROUND
On September 2, 2014, the trial court sentenced defendant to the upper term of 11
years for his conviction of voluntary manslaughter under section 192, subdivision (a), a
lesser included offense of count 1. The court imposed and stayed the one-year
enhancement under section 12022, subdivision (b)(1). The court stated that since it had
“considered the fact that the defendant used a weapon in deciding that the aggravated
term of 11 years is the appropriate term[,]” that it should stay the enhancement under
Rule 4.420, instead of imposing it.
2. THE ONE-YEAR ENHANCEMENT IS STRICKEN
Mandatory enhancements must be imposed unless stricken. (See People v.
Langston (2004) 33 Cal.4th 1237, 1241.) Section 12022, subdivision (b)(1), provides
that “A person who personally uses a deadly or dangerous weapon in the commission of a
felony or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for one year, unless use of a deadly or dangerous
weapon is an element of that offense.” Section 12022, subdivision (b)(1), uses
mandatory language, thus the sentencing enhancement must be imposed or stricken.
Moreover, under Rule 4.420, a court may only use a “fact charged and found as an
4 enhancement” to impose the upper term “only if the court has discretion to strike the
punishment for the enhancement and does so.”
In this case, the trial court found that Rule 4.420 applied. It found that defendant’s
knife-use allegation during the commission of the crime was an aggravating factor, which
justified the imposition of the upper term of his sentence. The court stated that because it
“considered the fact that the defendant used a weapon in deciding that the aggravated
term of 11 years is the appropriate term,” the extra one-year term for the section 12022,
subdivision (b)(1) enhancement should not apply. The court, therefore, stayed the one-
year sentence. However, under Rule 4.420, the court should have stricken the
enhancement. (See People v. Sandoval (2007) 41 Cal.4th 825, 848.)
The People agree that the trial court erred in staying the one-year sentence for the
enhancement, and that the trial court imposed the upper term because defendant used a
knife and then “stated that it was ‘mindful’ of rule 4.420 and its mandate that the court
could not impose the enhancement and also use it to impose the upper term.”
Nonetheless, the People contend that the case should be remanded because there were
other circumstances that could have justified imposing the upper term, “remand is
necessary so the trial court can determine whether to impose the upper term based on
different aggravating factors and then impose the enhancement, or to strike the
enhancement.” We disagree with the People and find that a remand is not necessary.
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Filed 12/3/15 P. v. Haas 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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062013
v. (Super.Ct.No. FSB1204873)
JONATHAN HAAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed as modified.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On November 13, 2012, an information charged defendant and appellant Jonathon
Haas with first degree murder under Penal Code1 section 187, subdivision (a). The
information also alleged that defendant personally used a deadly weapon, a knife, in the
commission of the offense under section 12022, subdivision (b)(1).
On August 1, 2014, a jury found defendant not guilty of murder, but guilty of the
lesser included offense of voluntary manslaughter under section 192, subdivision (a).
The jury also found the knife-use allegation true. The trial court subsequently sentenced
defendant to the upper term of 11 years in prison, but stayed the one-year knife-use
enhancement term. The court also imposed a $300 restitution fine and a $300 parole
revocation restitution fine. Defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
On October 26, 2012, defendant stabbed the victim to death after a fight over their
bicycles. That morning, Kaven and Kelli Holland were driving on Highland Avenue;
they saw defendant and the victim holding their bicycles and arguing. Defendant
punched the victim repeatedly as he held onto a bicycle and tried to protect himself. The
victim had his hand up in a defensive manner and tried to push defendant away.
Defendant then stabbed the victim in the chest and ran off. The victim, still clinging to
his bicycle, turned around, staggered away, and collapsed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Kaven and Kelli stopped and got out to help the victim. While Kaven stayed with
the victim, Kelli called 9112 and then got back into the car to follow defendant as he ran
away. Defendant ran across the street, through a parking lot and some businesses.
Defendant’s friend picked defendant up and drove away. The victim subsequently died
from his injuries. Police searched the home defendant was staying in. They found
defendant’s bloody clothing, and a knife in defendant’s shorts. Police found defendant at
a bar that evening and arrested him.
In a post-arrest interview, defendant told an officer that he had stabbed the victim
by accident. Defendant said that he was riding his bicycle when he saw the victim, who
had previously been hanging out around the area. Defendant approached the victim to
tell him to stay away from defendant’s house. Defendant claimed that after he finished
talking to the victim, the victim initially left. The victim, however, stopped, turned back
around, and attacked defendant with what looked like a bicycle pump. Defendant stated
that he defended himself by swinging the knife at the victim. Defendant claimed that he
did not know how the folding knife’s blade came to be exposed.
DISCUSSION
A. THE TRIAL COURT ERRED IN STAYING DEFENDANT’S
SENTENCE ON THE KNIFE-USE ENHANCEMENT
Defendant contends that the enhancement under section 12022, subdivision (b) for
personal use of a deadly or dangerous weapon in the commission of a felony should have
2 The 911 call was played for the jury.
3 been stricken, not stayed, under California Rules of Court, rule 4.420 (“Rule 4.420”).
The People agree that the trial court erred in staying the sentence. However, the People
argue this case should be remanded to the trial court for the court to strike or impose the
sentence. We agree with defendant and strike the enhancement.
1. BACKGROUND
On September 2, 2014, the trial court sentenced defendant to the upper term of 11
years for his conviction of voluntary manslaughter under section 192, subdivision (a), a
lesser included offense of count 1. The court imposed and stayed the one-year
enhancement under section 12022, subdivision (b)(1). The court stated that since it had
“considered the fact that the defendant used a weapon in deciding that the aggravated
term of 11 years is the appropriate term[,]” that it should stay the enhancement under
Rule 4.420, instead of imposing it.
2. THE ONE-YEAR ENHANCEMENT IS STRICKEN
Mandatory enhancements must be imposed unless stricken. (See People v.
Langston (2004) 33 Cal.4th 1237, 1241.) Section 12022, subdivision (b)(1), provides
that “A person who personally uses a deadly or dangerous weapon in the commission of a
felony or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for one year, unless use of a deadly or dangerous
weapon is an element of that offense.” Section 12022, subdivision (b)(1), uses
mandatory language, thus the sentencing enhancement must be imposed or stricken.
Moreover, under Rule 4.420, a court may only use a “fact charged and found as an
4 enhancement” to impose the upper term “only if the court has discretion to strike the
punishment for the enhancement and does so.”
In this case, the trial court found that Rule 4.420 applied. It found that defendant’s
knife-use allegation during the commission of the crime was an aggravating factor, which
justified the imposition of the upper term of his sentence. The court stated that because it
“considered the fact that the defendant used a weapon in deciding that the aggravated
term of 11 years is the appropriate term,” the extra one-year term for the section 12022,
subdivision (b)(1) enhancement should not apply. The court, therefore, stayed the one-
year sentence. However, under Rule 4.420, the court should have stricken the
enhancement. (See People v. Sandoval (2007) 41 Cal.4th 825, 848.)
The People agree that the trial court erred in staying the one-year sentence for the
enhancement, and that the trial court imposed the upper term because defendant used a
knife and then “stated that it was ‘mindful’ of rule 4.420 and its mandate that the court
could not impose the enhancement and also use it to impose the upper term.”
Nonetheless, the People contend that the case should be remanded because there were
other circumstances that could have justified imposing the upper term, “remand is
necessary so the trial court can determine whether to impose the upper term based on
different aggravating factors and then impose the enhancement, or to strike the
enhancement.” We disagree with the People and find that a remand is not necessary.
In this case, it is undisputed that the trial court intended to follow Rule 4.420,
subdivision (c). The record is clear that the trial court did not intend to impose the
punishment mandated by the enhancement as it stayed the imposition of the sentence
5 instead of imposing it. When a trial court’s intention is clear, we “need not remand for
resentencing, but can modify the judgment to reflect the intent of the trial court.” (People
v. Gutierrez (1996) 46 Cal.App.4th 804, 816; see also § 1260.) A remand would “waste
judicial resources on an unnecessary proceeding.” (People v. Kelly (1985) 163
Cal.App.3d 619, 622.) Here, as discussed above, the trial court clearly indicated that it
was staying the one-year sentence on the enhancement because the enhancement was
used to justify imposing the upper term on the main offense. Accordingly, the personal
use of a deadly weapon enhancement should have been stricken.
Moreover, remand is not required because the trial court is not allowed to increase
defendant’s aggregate sentence on remand. On remand after a sentencing error, a trial
court may not impose an aggregate sentence that exceeds the original sentence. (People
v. Castaneda (1999) 75 Cal.App.4th 611, 613-614.) The People argue that the trial court
should be allowed to resentence defendant to either strike or impose the one-year
enhancement. However, if the trial court were to impose the one-year enhancement,
defendant’s sentence would be increased by one year—exceeding the original sentence.
A remand, therefore, is unnecessary.
B. THE RESITUTION FINES ARE REDUCED
Defendant contends that his restitution and parole revocation fines should be
reduced from $300 to $240, because the trial court improperly imposed the fees based on
the law in effect at the time he was sentenced in 2014, rather than the law in effect at the
time of his crimes in 2012. We agree.
6 Section 1202.4, subdivision (b)(1), states that a restitution “fine shall not be less
than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty
dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on
January 1, 2014.”
In this case, defendant committed the instant offense on October 26, 2012. At the
sentencing hearing in 2014, the trial court imposed a $300 restitution fine under section
1202.4, indicating that it was imposing “a statutory minimum.” However, because
defendant committed the instant offense in October of 2012, the minimum fine under
section 1202.4, subdivision (b)(1), was $240, not $300.
The People, however, argue that the claim was forfeited because defense counsel
failed to object below. However, this lack of objection would then constitute ineffective
assistance of counsel (IAC). (See People v. Martinez (2014) 226 Cal.App.4th 1169,
1190.) In Martinez, the trial court used the minimum fine a formula provided by the
restitution statute in effect at the time of sentencing to calculate the defendant’s
restitution fine. (Id. at pp. 1188-1189.) The Court of Appeal concluded that the trial
court should have applied the restitution fine in effect at the time the defendant
committed his offense. (Id. at pp. 1189-1190.) Although the court found the defendant’s
ex post facto claim was forfeited by his counsel’s failure to object in the trial court, it
accepted the alternative contention that the lack of objection constituted IAC. (Ibid.)
The court explained, “[G]iven the court’s commitment to use the statutory formula in
Penal Code section 1202.4, subdivision (b)(2), it appears more than likely that the court
would have imposed the restitution fund fine using the . . . minimum that was in effect
7 when appellant committed his crimes had counsel raised an objection at the sentencing
hearing.” (Id. at p. 1190.) The appellate court then recalculated the defendant’s
restitution fine using the applicable statutory minimum and ordered the judgment
modified accordingly. (Id. at pp. 1190-1191.)
Here, similar to People v. Martinez, supra, 226 Cal.App.4th 1169, the record is
clear the trial court intended to impose the minimum restitution fines. The court stated it
was “issuing a . . . statutory minimum” fine. Therefore, we hereby order the restitution
and parole revocation fines be reduced from $300 to $240. (Id. at pp. 1190-1191.)
DISPOSITION
The abstract of judgment is modified (1) to reflect that the trial court struck, not
stayed, defendant’s one-year enhancement under section 12022, subdivision (b)(1); and
(2) to reduce the restitution and parole revocation fines from $300 to $240. The trial
court is directed to prepare an amended abstract of judgment and to forward a certified
copy to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
KING J.