Filed 8/24/15 P. v. Cervantez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061571
v. (Super.Ct.No. FSB1400714)
RICHARD PAUL CERVANTEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed with directions.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.
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Defendant Richard Paul Cervantez was charged with one count of attempted
murder, in violation of Penal Code, sections 664/187, subdivision (a),1 with special
allegations that he personally inflicted great bodily injury within the meaning of section
12022.7, subdivision (a), and that the offenses were committed for the benefit of, under
the direction of, or in association with a criminal street gang within the meaning of
section 186.22, subdivision (b)(1)(C). Additionally, he was charged with one count of
assault by means likely to produce great bodily injury, in violation of section 245,
subdivision (a)(4), with the same special allegations. A jury acquitted him as to count
one but found him guilty as to count two, finding true all special allegations in count two.
The judge added three years for the great bodily injury enhancement, and ten years for
the gang enhancement. Additionally, the judge ordered defendant pay a restitution fine
and a parole revocation fine in the amount of $300 each.
Defendant appeals, arguing (1) the sentence on count two for both the 10-year
gang enhancement and the great bodily injury enhancement was erroneous, (2) the
restitution and parole revocation fines should be reduced in accordance with the law
applicable at the time of the offense, and (3) the abstract of judgment should be amended
to reflect that he does not have two serious felony priors. The People concede all issues.
We affirm the conviction, modify the sentence, and direct the superior court to reduce the
restitution fines and amend the abstract of judgment.
1 All further statutory references are to the Penal Code unless otherwise indicated.
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BACKGROUND
On April 17, 2012, Deputy Bruce Sheble was at the San Bernardino County
Central Detention Center escorting a nurse on a sick call when he responded to a “man
down” call on the E-North tier. He soon discovered victim Richard Rodriguez lying on
the ground with his arm bent unnaturally as if broken. There was swelling on his head
and face, blood in his mouth, and his breathing was labored. He was also seizing and
posturing, indicating a brain injury. He was rushed to the hospital in critical but stable
condition. Deputy Sheble described the incident as “more severe than average beat
down” and a treating nurse thought the victim’s injuries so severe that she would be
“surprised if he made it.”
Before the assault, Charles Banks, an inmate of E-North, had been told by a
Hispanic inmate to clear the area because “something was going to happen.” He believed
they were going to “handle business,” which meant there would be an assault. He saw
inmates passing around some “bad paperwork” on Rodriguez, which he defined as bad
charges such as a sex offender conviction. He then went to the far end of the tier between
cell blocks three and four to watch the television. He could only hear the assault at first,
but is certain he saw at least some of it. What he heard was loud screaming and someone
shouting “What I do?”
About midway through the seven minute attack, he turned and saw three men
identified as the defendant, Gonzalo Hernandez, and Ricardo Garcia “beating” and
“socking” Rodriguez and “kicking him in the head.” He saw them stomp on Rodriguez’s
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arm and testicles, and Garcia he described as kicking and jumping on Rodriguez’s head.
After the assault was over, Banks saw defendant drag Rodriguez out of the cell by his
arm, which appeared broken, and lay him out on the tier. He said that the inmates
appeared nonchalant about what they had done and were laughing.
All perpetrators of the assault, including the defendant, self-identified as gang
members at that particular time. Particularly, defendant is a member of West Side
Verdugo, Mount Vernon branch. All Hispanic Southern California gang members fall
under the umbrella of Surenos. Deputy Chris Bassett, a gang expert, testified that though
they come from different gangs on the street, in a custody situation Surenos will band
together to make themselves stronger as a whole and conduct business for the Mexican
Mafia. In the past, Sureno gang members have been convicted of murder, extortion, and
drug trafficking. Surenos are known for checking “paperwork” of other inmates and
committing violent offenses on those considered to have the wrong type of convictions.
In Deputy Bassett’s expert opinion, in response to a hypothetical question, the nature of
the assault would lead him to believe that it was for the benefit of the Sureno gang.
DISCUSSION
I. Appellant’s Sentence on Count Two for Both the 10-year Gang Enhancement
and the 3-year Great Bodily Injury Enhancement was Erroneous
Defendant argues that the trial court erred in imposing both the enhancement for
infliction of great bodily injury under section 12022.7, subdivision (a) and the gang
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enhancement under section 186.22, subdivision (b)(1)(C). The People concede and we
accept the concession.
Section 1170.1, subdivision (g) provides that “when two or more enhancements
may be imposed for the infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those enhancements shall be imposed
for that offense.” (§ 1170.1, subd. (g).) Our Supreme Court states that the rationale
behind the statute, as part of the determinate sentencing law, is “to achieve greater
uniformity in sentencing by providing a limited range of sentencing options for each
offense.” (People v. Rodriguez (2009) 47 Cal.4th 501, 508 (Rodriguez).)
In Rodriguez, defendant faced additional punishments on his assault charge under
section 12022.5, subdivision (a) (personal use of a firearm), and section 186.22,
subdivision (b)(1)(C) (gang enhancement). (Rodriguez, supra, 47 Cal.4th at p. 508.)
Applying the rationale from Black to section 1170.1, subdivision (f), the Court
determined that the section 12022.5, subdivision (a) enhancement fell within the statute’s
limiting language. (Ibid.) Therefore, “[b]ecause two different sentence enhancements
were imposed for defendant’s firearm use, [the statute] requires that ‘only the greatest of
those enhancements be imposed.’” (Id. at pp. 508-509.) Similarly, People v. Gonzalez
(2009) 178 Cal.App.4th 1325, 1331-1332 (Gonzalez), found that section 1170.1,
subdivision (g), prohibited imposition of more than one enhancement for the infliction of
great bodily injury. In that case, the Court reasoned that the “same infliction of great
bodily injury” that subjected defendant to a section 12022.7, subdivision (a) enhancement
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also “turned . . . [the] underlying assault into a ‘violent felony’ under section 667.5,
which subjected him to a 10-year enhancement under section 186.22, subdivision
(b)(1)(C).” (Id. at p. 1332.)
The sentencing issue of the Gonzalez case is echoed in the case at bar. Here, the
trial judge gave defendant a three-year enhancement for infliction of great bodily injury
under section 12022.7, subdivision (a), and a 10-year gang enhancement under section
186.22, subdivision (b)(1)(C). We agree that this was in error and believe that the
reasoning behind the holdings of Rodriguez and Gonzalez control this case. Like the
sentence enhancements in Gonzalez, here defendant’s infliction of great bodily injury that
gave him a section 12022.7, subdivision (a) enhancement also made it a violent felony
that subjected him to a section 186.22, subdivision (b)(1)(C) enhancement. Therefore,
since two enhancements are being applied to the same conduct, section 1170.1,
subdivision (g) directs that only the greatest of the enhancements be imposed.
Having reviewed the entire record and applicable authorities, we accept the
People’s concession and direct the trial court to stay defendant’s three-year enhancement
for great bodily injury under section 12022.7, subdivision (a). (People v. Gonzalez
(2008) 43 Cal.4th 1118, 1126-1127 [§ 1170.1, subd. (f) directs that only one
enhancement may be imposed and executed for each crime, and allows the trial court to
impose and then stay all other prohibited enhancements].)
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II. Defendant’s Restitution and Parole Revocation Fines Should Be Reduced to
Reflect the Statutory Minimum
Defendant contends that the restitution and parole revocation fines should be
reduced from $300 to $240 to reflect the statutory minimum at the time he committed the
offense. The People concede and we accept the concession.
Defendant’s offense occurred on April 17, 2012. He argues that imposition of the
fine as it stood on the day of his sentencing, July 15, 2014, instead of the day of his
offense was a violation of the prohibition against ex post facto laws. Section 1202.4,
subdivision (b)(1) directs that “restitution fine[s] . . . shall not be less than . . . $240
starting on January 1, 2012 . . . and . . . $300 starting on January 1, 2014.” Similarly,
section 1202.45, subdivision (a) directs trial courts to impose an additional parole
revocation fine in the same amount as the restitution fine. It is important that a defendant
receive the correct punishment for his sentence, so as not to burden him with an
improperly increased minimum fine. (See People v. Saelee (1995) 35 Cal.App.4th 27,
31.)
Under the United States Constitution, “‘“any statute . . . (2) which makes more
burdensome the punishment for a crime, after its commission . . . is prohibited as ex post
facto.”’” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294, fn. omitted, quoting
Collins v. Youngblood (1990) 497 U.S. 37, 42.) It is well settled under California law
that the prohibition against ex post facto laws applies to restitution fines. (People v.
Souza (2012) 54 Cal.4th 90, 143; People v. Martinez (2014) 226 Cal.App.4th 1169, 1189
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(Martinez); People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) However, if
defendant raises no objections to the amount of the fines, the issue is forfeited on appeal.
(See People v. White (1997) 55 Cal.App.4th 914, 917.)
Defendant argues that objection to the amount of the restitution fine is not waived
by forfeiture because his trial counsel failed to object to receiving the incorrect restitution
fine, and so he received an ineffective assistance of counsel. (Martinez, supra, 226
Cal.App.4th at pp. 1169, 1190.) The People agree and address the elements needed to
prove an ineffective assistance of counsel claim. (Strickland v. Washington (1984) 466
U.S. 668, 687.) In this case, defendant committed the offense on April 17, 2012 but was
fined according to the statutory minimum at the time of his sentencing on July 15, 2014.
The Court stated that it meant to impose the statutory minimum restitution fine when it
set the fine at $300. Similar to the defendant in Martinez, trial counsel’s silence here
unfairly prejudiced the defendant in a circumstance where the outcome would be
different if there had been an objection. Therefore, defendant’s fine should be reduced to
$240, the statutory minimum at the time of his offense.
Having reviewed the record and applicable case law, we accept the People’s
concession and order modification of the restitution fine.
III. Errors in the Abstract of Judgment Should Be Corrected.
Defendant asserts the clerk incorrectly recorded his sentence in the minutes and on
the abstract of judgment. Specifically, he notes that in the oral pronouncement of
judgment, the court found true that appellant had suffered one serious felony prior within
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the meaning of section 667, subdivision (a)(1), and four prison priors within the meaning
of section 667.5, subdivision (b). But, the abstract reflects that the court imposed two
serious felony priors and three prison priors. The People agree that these clerical errors
should be corrected. We agree that the clerk’s minutes of the sentence and the abstract of
judgment do not conform to the oral sentence.
The abstract of judgment constitutes the commitment and is the order sending the
defendant to prison, and the process and authority for carrying the judgment and sentence
into effect; no other warrant or authority is necessary to justify or require its execution.
(§ 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Black (1967) 66
Cal.2d 881, 890.) The “abstract is a contemporaneous, statutorily sanctioned, officially
prepared clerical record of the conviction and sentence.” (People v. Delgado (2008) 43
Cal.4th 1059, 1070, emphasis added.) “When prepared by the court clerk, at or near the
time of judgment, as part of his or her official duty, it is cloaked with a presumption of
regularity and reliability.” (Ibid., citing Evid. Code, §§ 660, 664 & Pen. Code, § 1280.)
It should go without saying that accuracy is essential in a document that prescribes the
execution of sentence to the Department of Corrections and Rehabilitation (CDCR) and
to which a criminal investigation and identification number is assigned for interagency
use. (§ 1213, subd. (a).)
For those persons committed to state prison, the CDCR relies on the information
contained in the abstract to determine the defendant’s release date, as well as to
determine where the defendant should be housed, based on a classification score
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determined in reliance on the information about the conviction contained in the abstract.
(See Cal. Code of Regs., tit. 15, §§ 3075 [initial intake], 3077 [criteria for county
assessment program], 3078.3 [criteria for alternative custody program exclusion], 3269
[criteria considered for inmate housing assignments], 3375 [classification process],
3375.1 [inmate placement based on classification score].) Erroneous information on the
abstract of judgment can result in errors in the defendant’s classification score. With
thousands of inmates received by CDCR for processing and classification, misplaced
information on an abstract of judgment can result in errors or the unnecessary
consumption of time on the part of CDCR.
We agree that the clerk’s minutes and the abstract of judgment do not conform to
the oral sentence and direct the trial clerk to amend the abstract of judgment.
DISPOSITION
The convictions are affirmed. The superior court is directed to modify the
sentence as follows: (1) stay the three-year enhancement for great bodily injury under
section 12022.7, subdivision (a), pursuant to section 654; (2) reduce the amount of the
restitution fine to the statutory minimum of $240.00; and (3) amend the abstract of
judgment to reflect one prior conviction for a serious or violent felony within the
meaning of section 667, subdivision (a)(1), and four prior convictions for which
defendant served a prison sentence within the meaning of section 667.5, subdivision (b).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
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