Filed 10/23/20 P. v. Magana CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076271
Plaintiff and Respondent,
v. (Super. Ct. No. INF1501678)
ALEJANDRO FLORES MAGANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Harold W. Hopp, Judge. Affirmed in part and remanded with directions.
Patricia Ann Scott, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Assistant Attorneys General, Robin Urbanski and Mary K.
Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second appeal in this case, which comes to us after we
directed the trial court to resentence Alejandro Flores Magana and, among
other things, exercise its discretion under Penal Code1 section 12022.53,
subdivision (h) whether to strike firearm enhancements. (People v. Magana
(Mar. 20, 2019, D074709) [nonpub. opn.] (Magana).) The court declined to
strike a 25-year-to-life enhancement on one of the counts, and reimposed it in
resentencing Magana.
Magana again appeals, raising mainly sentencing errors and asking for
another hearing on the firearm enhancement. He contends his counsel was
prejudicially ineffective at his resentencing hearing for not asking the court
to modify the section 12022.53, subdivision (d) enhancement to an uncharged
lesser included enhancement under section 12022.53, subdivision (b) or (c).
He further contends his exclusion as a third-striker from the benefit of early
youth offender parole consideration violates his constitutional right to equal
protection. Finally, as to his new sentence, Magana contends the court
should have stayed the sentences on counts 2 and 4 and their attached
enhancements, and it also erred by imposing a 10-year prison term for a gang
enhancement in addition to those for great bodily injury and use of a firearm.
The People concede the latter two sentencing errors. We accept the
concessions in part and remand for the court to resentence Magana as set
forth below. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of Magana’s offenses were summarized in detail in
our prior opinion (Magana, supra, D074709) and need not be repeated in
detail here. It suffices to say that in September 2015, Magana shot a young
woman in her hand, then took her vehicle. (Magana, D074709.)
1 Undesignated statutory references are to the Penal Code.
2
As stated in our prior opinion,2 Magana was convicted of carjacking
(§ 215, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2),
unlawful possession of a firearm (§ 29800, subd. (a)(1); count 3), and unlawful
taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 4). Based
on the jury’s true findings on various allegations including his use of a
firearm,3 the court sentenced Magana to a total prison term of 31 years eight
months plus 55 years to life. (Magana, D074709.)
Magana challenged his sentence and claimed other errors on appeal.
(Magana, supra, D074709.) We affirmed in part, but conditionally reversed
the judgment as to the count 4 car theft offense and remanded the matter
with directions that the trial court permit the People to elect to retry a felony
violation of Vehicle Code section 10851 or accept a reduction of that
conviction to a misdemeanor. We vacated Magana’s sentence and directed
the court on remand to stay his sentence on counts 2 and 4 under section 654,
consider whether a prior prison term enhancement was supported by
sufficient jury findings, and exercise its discretion whether to (a) strike
Magana’s firearm enhancements; (b) impose concurrent terms on counts 2
2 We granted Magana’s unopposed request for judicial notice of the
record in his prior appeal as well as our opinion.
3 The jury found true allegations that in the commission of the count 1
carjacking and count 2 assault Magana personally used and intentionally
discharged a firearm proximately causing great bodily injury (§§ 12022.5,
subd. (a), 12022.53, subds. (b), (d), 1192.7, subd. (c)(8)) and that he personally
inflicted great bodily injury on the victim (§§ 12022.7, subd. (a), 1192.7,
subd. (c)(8)). The jury found true allegations that as to counts 1, 2 and 4, the
offenses were committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)), and as to count 1, that Magana acted as a principal for the gang’s
benefit (§ 12022.53, subd. (e)). It further found true that Magana had
suffered a prior serious felony and strike conviction (§§ 667, subds. (a)(1), (c),
(e)(1), 1170.12, subd. (c)(1)).
3
and 4 if not stayed; and (c) strike the five-year sentence enhancement for his
prior serious felony conviction. (Magana, D074709.)
Following remand, the People declined to retry Magana on count 4, and
the court declared that offense to be a misdemeanor. It resentenced Magana
in July 2019. The court ordered Magana’s count 2, 3 and 4 sentences be
served concurrently to count 1, and struck both the five-year sentencing
enhancement for the prior serious felony conviction and the one-year section
667.5, subdivision (b) enhancement. It declined to strike the 25-year-to-life
firearm enhancement. It imposed a 55-year-to-life sentence consisting of 30
years for the count 1 carjacking, plus 25 years-to-life for the firearm
enhancement attached to that count.
Magana filed this appeal.
DISCUSSION
I. Ineffective Assistance of Counsel Claim
Magana contends his counsel was prejudicially ineffective at his
resentencing hearing by not asking the trial court to exercise its discretion to
impose a lesser firearm enhancement under section 12022.53, subdivisions
(b) or (c), which it was assertedly permitted to do under People v. Morrison
(2019) 34 Cal.App.5th 217 (Morrison). According to Magana, under Morrison,
which was decided before his resentencing hearing, the trial court could have
stricken his section 12022.53, subdivision (d) enhancement and imposed a
determinate term of 20 years under section 12022.53, subdivision (c), giving
him a determinate 50-year term. Magana argues the court was also
authorized to impose a 10-year enhancement under section 12202.53,
subdivision (b) in lieu of the subdivision (d) enhancement. He maintains
there was no valid strategic reason for his counsel’s omission. Magana
argues that because the court was not asked to consider the full range of
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options for exercising its power under section 12022.53, subdivision (h) and
did not understand the scope of its sentencing discretion, this court should
remand for a new hearing.
A. Legal Principles
“ ‘An ineffective assistance claim has two components: A petitioner
must show that counsel’s performance was deficient, and that the deficiency
prejudiced the defense.’ [Citations.] Whether counsel’s performance was
deficient, and whether any deficiency prejudiced defendant, are mixed
questions of law and fact subject to our independent review.” (In re Gay
(2020) 8 Cal.5th 1059, 1073.) “ ‘[T]o establish deficient performance, a
petitioner must demonstrate that counsel’s representation “fell below an
objective standard of reasonableness,” ’ as measured by ‘ “prevailing
professional norms.” ’ [Citation.] When applying this standard, we ask
whether any reasonably competent counsel would have done as counsel did.
[Citation.] Counsel’s performance ‘is assessed according to the prevailing
norms at the time.’ [Citation.] Judicial review of counsel’s performance is
deferential; to establish deficient performance, the defendant ‘must overcome
the presumption that, under the circumstances, the challenged action “might
be considered sound trial strategy.” ’ ” (Ibid.; see Strickland v. Washington
(1984) 466 U.S. 668, 689 (Strickland).)
As to prejudice, the question is whether there is a reasonable
probability that, absent counsel’s errors, Magana would have obtained a more
favorable result. (Strickland, supra, 466 U.S. at p. 695.) “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” (In re Gay, supra, 8 Cal.5th at p. 1086.) The reviewing “court need
not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.”
5
(Strickland, at p. 697.) “If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, . . . that course should be followed.”
(Ibid.)
B. Magana Cannot Demonstrate Prejudice From His Counsel’s Alleged Error
As stated, Magana’s ineffective assistance of counsel claim is based on
Morrison, supra, 34 Cal.App.5th 217. In Morrison, the defendant was
sentenced to a 25-year-to-life term for a firearm enhancement under section
12022.53, subdivision (d), which the court reimposed after his sentence was
recalled based on amendments giving the court discretion to strike those
enhancements. (Morrison, at p. 220.) On the defendant’s appeal, the
appellate court, based on an interpretation of the scope of a court’s sentencing
options under section 1385 expressed in People v. Marsh (1984) 36 Cal.3d
134, held a court could impose a lesser enhancement under section 12022.53,
subdivisions (b) or (c) in lieu of the greater enhancement, if that outcome was
found to be in the interests of justice under section 1385. (Morrison, at p.
223.)
Other courts have disagreed with Morrison’s conclusions, and the
California Supreme Court has taken up the issue. (People v. Tirado (2019) 38
Cal.App.5th 637, review granted November 13, 2019, No. S257658 (Tirado);
People v. Valles (2020) 49 Cal.App.5th 156, review granted July 22, 2020, No.
S262757; People v. Garcia (2020) 46 Cal.App.5th 786, review granted June
10, 2020, No. S261772; People v. Yanez (2020) 44 Cal.App.5th 452, review
granted April 22, 2020, No. S260819.)
In Tirado, the court concluded a trial court that strikes a firearm
enhancement under amended section 12022.53, subdivision (h) has no
discretion to impose an uncharged lesser included enhancement. (Tirado,
supra, 38 Cal.App.5th at pp. 639-640, rev.gr.; see also People v. Garcia, supra,
6
46 Cal.App.5th at pp. 790-791, rev.gr.) The Tirado court reasoned that
“[n]othing in the plain language of sections 1385 and 12022.53, subdivision
(h) authorizes a trial court to substitute one enhancement for another.
Section 12022.53, subdivision (h) uses the verbs ‘strike’ and ‘dismiss,’ and
section 1385, subdivision (a) states the court may ‘order an action to be
dismissed.’ This language indicates the court’s power pursuant to these
sections is binary: the court can choose to dismiss a charge or enhancement in
the interest of justice, or it can choose to take no action. There is nothing in
either statute that conveys the power to change, modify, or substitute a
charge or enhancement.” (Tirado, at p. 643.) The court said such a
conclusion is “consistent with the well-settled principle that ‘prosecuting
authorities, exercising executive functions, ordinarily have the sole discretion
to determine . . . what charges to bring.’ ” [Citation.] . . . [Citation.] ‘The
prosecution’s authority in this regard is founded, among other things, on the
principle of separation of powers, and generally is not subject to supervision
by the judicial branch.’ ” (Tirado, at p. 644.) Tirado further reasoned that
had the People alleged all three enhancements under section 12022.53 and
the jury found them all true “the court would have had the discretion to
strike the section 12022.53, subdivision (d) enhancement and then either
impose one of the other two enhancements or strike them as well. However,
because the People exercised their charging discretion to allege only one
enhancement, the trial court was limited to either imposing or striking that
enhancement.” (Tirado, at p. 644.) Under Tirado, it is only where a charged
enhancement is factually unsupported or legally inapplicable to the offense
that the court has authority to impose a lesser included enhancement. (See
also People v. Garcia, supra, 46 Cal.App.5th at pp. 790-791 [agreeing with
Tirado that “section 12022.53, subdivision (h) does not grant a trial court the
7
discretion to substitute lesser included enhancements, at least where the
greater enhancement is legally and factually valid”], 794; People v. Yanez,
supra, 44 Cal.App.5th at pp. 458-460 [nothing in plain language of sections
1385 or 12022.53, subdivision (h) suggests the Legislature intended to grant
courts sentencing discretion to impose a lesser, uncharged firearm
enhancement and declining to adopt contrary interpretation on separation of
powers principles], rev.gr.)
We need not decide whether Morrison or the Tirado line of cases
reaches the correct result. That is because under the circumstances, any
error by trial counsel in failing to ask the court to exercise discretion to
impose a lesser enhancement would not result in prejudice to Magana under
Strickland’s “reasonable probability” standard. The jury in this case was
instructed and made specific findings on both the section 12022.53,
subdivision (d) and section 12022.53, subdivision (b) enhancements as to
count 1. Thus, the court could have exercised its discretion to strike the 25-
year enhancement under section (d) and impose the 10-year section 12022.53,
subdivision (b) enhancement without resorting to Morrison’s “lesser included”
rationale. In our view, however, it is not reasonably probable the court would
have done so in view of its specific finding that Magana’s 55-year prison term
on count one (30 years plus the 25-year enhancement) “is appropriate given
the circumstance of this offense.” In short, in this case, Magana cannot
demonstrate he was prejudiced by any supposed error by his counsel.
II. Equal Protection Claim
In 2014, the Legislature enacted laws, including section 3051, that
provide a parole eligibility mechanism for juvenile offenders. (People v.
8
Franklin (2016) 63 Cal.4th 261, 277.)4 “[S]ection 3051 . . . requires the Board
[of Parole Hearings] to conduct a ‘youth offender parole hearing’ during the
15th, 20th, or 25th year of a juvenile offender’s incarceration. [Citation.] The
date of the hearing depends on the offender’s ‘[c]ontrolling offense,’ which is
defined as ‘the offense or enhancement for which any sentencing court
imposed the longest term of imprisonment.’ [Citation.] A juvenile offender
whose controlling offense carries a term of 25 years to life or greater is
‘eligible for release on parole by the board during his or her 25th year of
incarceration at a youth offender parole hearing, unless previously released
or entitled to an earlier parole consideration hearing pursuant to other
statutory provisions.’ [Citation.] The statute excludes several categories of
juvenile offenders from eligibility for a youth offender parole hearing: those
who are sentenced under the ‘Three Strikes’ law [citation] or Jessica’s Law
[citation], those who are sentenced to life without parole, and those who
commit another crime ‘subsequent to attaining 23 years of age . . . for which
malice aforethought is a necessary element of the crime or for which the
4 In passing these laws, the Legislature explained that “ ‘youthfulness
both lessens a juvenile’s moral culpability and enhances the prospect that, as
a youth matures into an adult and neurological development occurs, these
individuals can become contributing members of society.’ [Citation.] Thus,
the bill’s purpose was ‘to establish a parole eligibility mechanism that
provides a person serving a sentence for crimes that he or she committed as a
juvenile the opportunity to obtain release when he or she has shown that he
or she has been rehabilitated and gained maturity.’ [Citation.] [¶] To this
end, section 3051 provides that an offender who committed a ‘controlling
offense’ as a youth is entitled to a ‘youth offender parole hearing’ after a fixed
period of years set by statute.” (In re Jenson (2018) 24 Cal.App.5th 266, 276-
277.) Since then, the Legislature has changed the age threshold to age 23
(Stats. 2015, ch. 471, § 2) and now to age 25 (Stats. 2017, ch. 684, § 2.5, eff.
Jan. 1, 2018). (See People v. Contreras (2018) 4 Cal.5th 349, 381.)
9
individual is sentenced to life in prison.’ ” (People v. Franklin, 63 Cal.4th at
pp. 277-278.)
“Section 3051 thus reflects the Legislature’s judgment that 25 years is
the maximum amount of time that a juvenile offender may serve before
becoming eligible for parole. Apart from the categories of offenders expressly
excluded by the statute, section 3051 provides all juvenile offenders with a
parole hearing during or before their 25th year of incarceration. The statute
establishes what is, in the Legislature’s view, the appropriate time to
determine whether a juvenile offender has ‘rehabilitated and gained
maturity’ [citation] so that he or she may have ‘a meaningful opportunity to
obtain release’ [citation].” (People v. Franklin, supra, 63 Cal.4th at p. 278.)
Magana was 21 years old when he committed the offenses in this case.
He was sentenced to a “Two Strike” term based on his prior 2014 convictions
for active participation in a criminal street gang and assault with force likely
to cause great bodily injury. Under the version of section 3051 applicable
when he committed the offenses, Magana’s sentence makes him statutorily
ineligible for a youth offender parole hearing. (Former § 3051, subd. (h)
[“This section shall not apply to cases in which sentencing occurs pursuant to
Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667”].)
Magana contends his categorical ineligibility, as a Two Strike offender,
for an early youth offender parole hearing violates his rights under the
federal and state equal protection clauses. He maintains a Two Strike
offender is similarly situated to any other youth offender with a sentence of
over 25 years, because they are all otherwise eligible under the same statute
for the same type of parole hearing, and the subdivisions defining eligibility
are based on the length of the sentence and not the offense or offenses
committed. Magana relies on People v. Edwards (2019) 34 Cal.App.5th 183,
10
in which the court held section 3051’s categorical ineligibility for “One Strike”
offenders had no rational basis and violated such offenders’ right to equal
protection, reasoning One Strike offenders are similarly situated to youths
who commit intentional first degree murder who remain eligible for youth
offender parole hearings even though their crimes are regarded as more
culpable than the violent sex crimes falling within the One Strike law. (Id. at
pp. 195-199.) Edwards concluded the carve out in section 3051, subdivision
(h) was unconstitutional on its face, and remanded for the trial court to
determine whether the defendants there were afforded an adequate
opportunity to make a record of information relevant to a future youthful
offender parole hearing. (Id. at pp. 199-200.) Magana similarly asks that
this court remand the matter for a proceeding in which he can develop a
record of evidence relevant to such a hearing.
The People respond that Magana forfeited any claim implicating his
individualized circumstances, and is limited to facially challenging section
3051’s exemption for those sentenced under the Three Strikes law. They
argue Magana’s repeated commission of serious and violent strike offenses
makes him unlike any other youth offender who has not committed such
offenses. The People maintain that even assuming Magana is similarly
situated to juveniles who did not commit multiple strike offenses, rational
basis scrutiny applies since the classifications under section 3051 are not
based on race, national origin, gender or any other such suspect class, and
under that test, we should reject Magana’s challenge on grounds the
Legislature in enacting section 3051 made a “rational, moral judgment that
the public should be protected from violent serial offenders such as [Magana],
and that violent serial offenders should be incarcerated for longer periods of
time.” The People argue People v. Edwards, supra, 34 Cal.App.5th 183 was
11
wrongly decided; that the court there “inappropriately intruded on the
Legislature’s prerogative to make its own policy judgment about which adult
offenders are most appropriately afforded early parole consideration.”5
We review Magana’s equal protection claim—which we perceive is a
facial challenge—de novo. (People v. Laird (2018) 27 Cal.App.5th 458, 469,
citing California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177,
208.) California’s equal protection clause offers substantially similar
protection to the federal equal protection clause. (People v. Edwards, supra,
34 Cal.App.5th at pp. 195-196.) “The concept of equal treatment under the
laws means that persons similarly situated regarding the legitimate purpose
of the law should receive like treatment. [Citation.] ‘ “The first prerequisite
to a meritorious claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more similarly situated
groups in an unequal manner.” [Citations.] This initial inquiry is not
whether persons are similarly situated for all purposes, but “whether they
are similarly situated for purposes of the law challenged.” ’ ” (People v.
Morales (2016) 63 Cal.4th 399, 408.)
Additionally, the Legislature can classify groups as different “ ‘so long
as a reasonable basis for the distinction exists.’ ” (People v. Laird, supra, 27
5 The California Supreme Court has taken up the equal protection issue
raised in People v. Edwards, supra, 34 Cal.App.5th 183 as to youths convicted
and sentenced for sex crimes under the One Strike law, which this court
addressed in People v. Williams (2020) 47 Cal.App.5th 475, review granted
July 22, 2020, No. S262229.) In Williams, a panel of this court, applying a
rational basis test, rejected a One Strike defendant’s equal protection
challenge based on Edwards. (Williams, at pp. 490, 493.) Our colleagues
disagreed with Edwards and held “the threat of recidivism by violent sexual
offenders—as demonstrated by the Legislature’s enactment of several
comprehensive statutory schemes to curb such recidivism among such
offenders—provides a rational basis for the Legislature’s decision to exclude
one-strikers from the reach of section 3051.” (Williams, at p. 493.)
12
Cal.App.5th at p. 469.) “To mount a successful rational basis challenge, a
party must ‘ “negative every conceivable basis” ’ that might support the
disputed statutory disparity. [Citations.] If a plausible basis exists for the
disparity, ‘[e]qual protection analysis does not entitle the judiciary to second-
guess the wisdom, fairness, or logic of the law.’ ” (People v. Edwards, supra,
34 Cal.App.5th at pp. 195-196; see also People v. Morales, supra, 63 Cal.4th
at p. 408; People v. Turnage (2012) 55 Cal.4th 62, 74.)
Recently, in People v. Wilkes (2020) 46 Cal.App.5th 1159, the First
District, Division Five Court of Appeal rejected a similar contention to
Magana’s. In Wilkes, the jury found the defendant guilty of, among other
offenses, attempted murder and found true an allegation it was committed
willfully, deliberately and with premeditation. (Id. at pp. 1163-1164.) The
defendant admitted prior conviction allegations and the court sentenced him
under the Three Strikes law to a prison term of 59 years four months to life.
(Id. at p. 1164.) On appeal, the defendant, who was 25 years old when he
committed the offenses, argued the differential treatment of Three Strikes
youth offenders violated his right to equal protection; that he was similarly
situated to youth offenders who were not sentenced pursuant to the Three
Strikes law, and there was no rational basis for the different treatment. (Id.
at pp. 1164-1165.)
The Wilkes court disagreed: “Numerous courts have rejected equal
protection challenges to the differential treatment of Three Strikes offenders,
concluding that such offenders are not similarly situated to non-recidivist
offenders and/or that a rational basis exists to treat them differently. As one
such court reasoned: ‘A person who has committed and been convicted of two
serious or violent felonies before the instant offense is a recidivist who has
engaged in significant antisocial behavior and who has not benefited from the
13
intervention of the criminal justice system . . . . It is reasonable for the
Legislature to distinguish between those felons . . . who come to court with a
history of serious or violent felony convictions and those who do not.’
[Citations.] [¶] The reasoning of these cases applies here. The purpose of
section 3051 is ‘to give youthful offenders “a meaningful opportunity to obtain
release” after they have served at least 15, 20, or 25 years in prison (§ 3051,
subd. (e)) and made “ ‘a showing of rehabilitation and maturity’ ” and ‘to
account for neuroscience research that the human brain—especially those
portions responsible for judgment and decisionmaking—continues to develop
into a person’s mid-20s.’ [Citation.] Assuming a Three Strikes youth
offender is similarly situated to other youth offenders for purposes of section
3051, the Legislature could rationally determine that the former—‘a
recidivist who has engaged in significant antisocial behavior and who has not
benefited from the intervention of the criminal justice system’ [citation]—
presents too great a risk of recidivism to allow the possibility of early parole.”
(People v. Wilkes, supra, 46 Cal.App.5th at pp. 1165-1166, citing People v.
Cooper (1996) 43 Cal.App.4th 815, 829; People v. Kilborn (1996) 41
Cal.App.4th 1325, 1332 [“The system of imposing greater punishment on all
persons who commit a felony-grade crime after having committed one or more
serious or violent felonies in the past, is rationally related to the legitimate
public objective of discouraging recidivism”]; People v. Spears (1995) 40
Cal.App.4th 1683, 1687 [“It is clear the Legislature intended to set appellant
and other recidivists with prior ‘strike’ convictions apart from first time
offenders and those with less serious criminal histories; it is equally clear it
did so with a legitimate objective in mind”]; People v. McCain (1995) 36
Cal.App.4th 817, 820 [“The Legislature has seen fit to increase the severity of
punishment for recidivists who have committed serious or violent felonies
14
and who again commit felony offenses . . . . [W]e cannot say harsher
treatment for such recidivists is irrational or arbitrary such that it denies
them equal protection under the law”].)
Wilkes pointed out that a distinguishing characteristic of Three Strikes
offenders, unlike the defendant sentenced for sex offenses under the One
Strike law in People v. Edwards, supra, 34 Cal.App.5th 183, is that they are
not being sentenced for a first-time offense. (People v. Wilkes, supra, 46
Cal.App.5th at p. 1166 [“ ‘The “One Strike” law is an alternative, harsher
sentencing scheme that applies to specified felony sex offenses,’ such that ‘ “a
first-time offense can result in one of two heightened sentences” ’ ”].) “Thus,
the ample authority rejecting equal protection challenges from Three Strikes
offenders did not apply in Edwards,” where the court “took pains to ‘note that
criminal history plays no role in defining a One Strike crime’ and that ‘[t]he
problem in this case is’ the categorical exclusion of ‘an entire class of youthful
offenders convicted of a crime short of homicide . . . , regardless of criminal
history . . . .’ ” (People v. Wilkes, at pp. 1166-1167, quoting Edwards, at
p. 199.)
We follow Wilkes’s reasoning to reject Magana’s equal protection
arguments. We cannot agree that Magana—who has committed repeat
serious or violent felonies—is similarly situated to other youth offenders
without strike priors but with sentences over 25 years for purposes of the
law. Further, we see “a rational relationship between the disparity of
treatment and some legitimate governmental purpose.” (Heller v. Doe (1993)
509 U.S. 312, 320; see also People v. Turnage, supra, 55 Cal.4th at p. 74
[equal protection is denied only where there is no rational relationship
between the disparity of treatment and some legitimate governmental
purpose].) “ ‘[W]hen conducting rational basis review, we must accept any
15
gross generalizations and rough accommodations that the Legislature seems
to have made.’ [Citation.] ‘A classification is not arbitrary or irrational
simply because there is an “imperfect fit between means and ends” ’
[citation], or ‘because it may be “to some extent both underinclusive and
overinclusive” ’ [citation].” (Johnson v. Department of Justice (2015) 60
Cal.4th 871, 887.) As stated, the law will “survive[] constitutional scrutiny as
long as there is “ ‘any reasonably conceivable state of facts that could provide
a rational basis for’ ” treating the youthful offenders differently. (People v.
Turnage, at p. 74.)
These principles require that we reject Magana’s assertions that
exclusion of Third Strikers violates the holdings in Graham v. Florida (2010)
560 U.S. 48, Miller v. Alabama (2012) 567 U.S. 460 and People v. Caballero
(2012) 55 Cal.4th 262, which curtailed imposition of life without parole
sentences for juvenile offenders on Eighth Amendment grounds. The
Legislature plainly accounted for these decisions when it enacted section
3051. (See People v. Franklin, supra, 63 Cal.4th at p. 268 [the Legislature
enacted sections 3051 and 4801 “to bring juvenile sentencing in conformity
with Miller, Graham, and Caballero”]; see Legis. Counsel’s Dig., Sen. Bill No.
260, Stats. 2013, ch. 312, § 4 [“This bill would exempt from its provisions
inmates who were sentenced pursuant to the Three Strikes law”].) “At
bottom, the Legislature is afforded considerable latitude in defining and
setting the consequences of criminal offenses.” (Johnson v. Department of
Justice, supra, 60 Cal.4th at p. 887.) We agree the Legislature’s treatment of
youths sentenced under the Three Strikes law like Magana so as to exclude
them from the benefit of early parole consideration is rationally related to the
legitimate governmental objective of discouraging recidivism. (People v.
Kilborn, supra, 41 Cal.App.4th at p. 1332.) We cannot say in view of these
16
legislative concerns that the different treatment here so lacks rationality that
it constitutes a denial of equal protection. (Ibid.)
III. Sentencing Errors
A. Sentences on Counts 2 and 4
Magana contends the concurrent sentences imposed by the court on
counts 2 and 4 should have been stayed pursuant to section 654 in accordance
with this court’s prior opinion. The People concede the point, and we agree
our direction that the court stay counts 2 and 4 under section 654 (Magana,
supra, D074709) requires that result.
B. Prison Term for Gang Enhancement on Count 2
The trial court sentenced Magana to a total term of 23 years on count 2,
consisting of six years for the assault with a firearm (the midterm of three
years doubled for the prior strike), plus ten years on the jury’s finding
Magana committed the crime to benefit a criminal street gang (§ 186.22,
subd. (b)(1)(C)), plus four years on the jury’s finding he personally used a
firearm (12022.5, subd. (a)), plus three years on the jury’s finding he inflicted
great bodily injury (12022.7, subd. (a)). (See footnote 3, ante.)
Magana contends the trial court imposed an unauthorized sentence by
sentencing him to the 10-year gang enhancement and at the same time
imposing prison terms for the gun use and great bodily injury enhancements.
He explains that the assault conviction was deemed a violent felony under
section 667.5, subdivision (c)(8) given either his firearm use or infliction of
great bodily injury, thus increasing his sentence for the gang enhancement to
a ten-year term under section 186.22, subdivision (b)(1)(C). Pointing out the
record does not reflect which enhancement the court selected to elevate the
gang enhancement, Magana argues the sentence violates section 1170.1,
subdivisions (f) and (g), which prohibit imposition of multiple enhancements
17
using the same aggravating factor6 and we should direct the trial court to
restructure the sentence accordingly.
The People concede error and agree that this court should remand the
matter with directions that the trial court clarify which factor (firearm use or
infliction of great bodily injury) it used to elevate the count 2 assault to a
violent felony, and strike the additional enhancement for that factor
consistent with section 1170.1.
We accept the concession in part. A court’s failure to comply with
section 1170.1 can give rise to a claim that a sentence is legally unauthorized.
(See People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.) Magana’s assault
conviction qualified as a violent felony under section 667.5, subdivision (c)
either because he used a firearm (§ 12022.5) or inflicted great bodily injury on
a person other than an accomplice (§ 12022.7). (§ 667.5, subd. (c)(8); accord,
People v. Rodriguez (2009) 47 Cal.4th 501, 508-509 [use of firearm during
assault made defendant eligible for 10-year gang enhancement, thus his
sentence could not be enhanced both for firearm use (§ 12022.5) and for
committing the violent felony to benefit a criminal street gang (§ 186.22, subd
6 Section 1170.1, subdivision (f) provides: “When two or more
enhancements may be imposed for being armed with or using a dangerous or
deadly weapon or a firearm in the commission of a single offense, only the
greatest of those enhancements shall be imposed for that offense. This
subdivision shall not limit the imposition of any other enhancements
applicable to that offense, including an enhancement for the infliction of
great bodily injury.” Subdivision (g) of that section provides: “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. This subdivision shall
not limit the imposition of any other enhancements applicable to that offense,
including an enhancement for being armed with or using a dangerous or
deadly weapon or a firearm.”
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(b)(1)(C))]; see also People v. Le (2015) 61 Cal.4th 416, 425.) The court in
People v. Le explained that the gang statute mandates punishment
depending on the severity of the felony offense, thus here, the court was
required to sentence Magana under subdivision (b)(1)(C) of section 186.22.
(People v. Le, at pp. 422-423.) Under Rodriguez, 47 Cal.4th 501, depending
on which sentencing factor it used to elevate the assault to a violent felony,
the trial court could not impose and execute either the great bodily injury
enhancement or the firearm enhancement. (See People v. Gonzalez (2009) 43
Cal.4th 1118, 1123.)
However unlike Rodriguez, supra, 47 Cal.4th 501, here, the trial court
will be staying the sentence on count 2 (and related enhancements)
completely under section 654. This is where we part with the People’s
concession. In People v. Gonzalez, supra, 43 Cal.4th 1118, the California
Supreme Court considered section 12022.53, subdivision (f), which provides,
similar to section 1170.1, that when “ ‘more than one enhancement per
person is found true under this section, the court shall impose upon that
person the enhancement that provides the longest term of imprisonment.’ ”
(Gonzalez, at p. 1125.) The question was whether that provision required
that the enhancements providing shorter terms of imprisonment must be
stayed or stricken. (Id. at p. 1124.) The court concluded that “the remaining
section 12022.53 firearm enhancements and any section 12022.5 firearm
enhancements that were found true for the same crime must be imposed and
then stayed.” (Gonzalez, at p. 1123.) It explained that the use of the word
“impose” in section 12022.53, subdivision (f), had to mean “impose and then
execute” to best harmonize the statute internally. (Gonzalez, at p. 1126.)
Thus Gonzalez held that section 12022.53, subdivision (f), “directs that only
one enhancement may be imposed and then executed per person for each
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crime, and allows a trial court to impose and then stay all other prohibited
enhancements.” (Id. at p. 1127.) The court also noted that the rationale
underlying that rule and section 654—preservation of the possibility that a
stayed portion of a sentence could be imposed if the unstayed portion is
reversed on appeal—also was served by its construction of section 12022.53,
subdivision (f). (Gonzalez, at pp. 1128-1129.)
More recently in People v. Le, supra, 61 Cal.4th 416, the court, applying
Rodriguez, supra, 47 Cal.4th 501, implicitly endorsed Gonzalez’s impose-and-
stay procedure. The defendant in Le was convicted of assault with an
automatic firearm (§ 245, subd. (b)), and the jury found true allegations that
he personally used a firearm (§ 12022.5, former subd. (a)(1)) and committed
the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
(Le, at p. 420.) At the sentencing hearing, the parties contested whether
Rodriguez applied. (Le, at p. 421.) The trial court ruled that “under
Rodriguez, it could not impose terms for both enhancements because the
jury’s findings made defendant’s assault a violent felony under section 667.5,
thereby making the applicable enhancement the same 10-year term under
section 186.22, subdivision (b)(1)(C)” and accordingly “imposed the 10-year
term for that enhancement, but stayed any sentence enhancement under
section 12022.5, subdivision (a).” (Le, at pp. 421, 422 .) The Court of Appeal
affirmed the lower court’s imposition and stay of the section 12022.5
enhancement. (Le, at p. 422.) The Supreme Court likewise affirmed, while
simultaneously holding that “a trial court is precluded from imposing both a
firearm enhancement under section 12022.5, subdivision (a)(1) and a serious
felony gang enhancement under section 186.22, subdivision (b)(1)(B) when
the crime qualifies as a serious felony solely because it involved firearm use.”
(Le, 61 Cal.4th at p. 429.) Thus, it concluded that enhancements are not
20
impermissibly double-counted where any duplicative enhancement is
imposed and stayed. (Accord, People v. Vega (2013) 214 Cal.App.4th 1387,
1395-1396 [jury found defendant personally inflicted great bodily injury in
commission of crime (§ 12022.7, subd. (a)), and also committed it on behalf of
a criminal street gang; Court of Appeal held trial court should have imposed
and then stayed execution of the section 12022.7, subdivision (a)
enhancement].)
Following the reasoning articulated above, the trial court in this case
may impose and stay any duplicative sentencing enhancement; it need not
strike the duplicate enhancement so as to comply with section 1170.1,
subdivision (f) or (g).7
DISPOSITION
The matter is remanded for another sentencing hearing in which the
trial court on count 2 shall clarify its sentencing choices and apply section
7 California Rules of Court, rule 4.447 also compels this result. That rule
provides: “A court may not strike or dismiss an enhancement solely because
imposition of the term is prohibited by law or exceeds limitations on the
imposition of multiple enhancements. Instead, the court must: (1) Impose a
sentence for the aggregate term of imprisonment computed without
reference to those prohibitions or limitations; and (2) Stay execution of the
part of the term that is prohibited or exceeds the applicable limitation.
The stay will become permanent once the defendant finishes serving the
part of the sentence that has not been stayed.” (Cal. Rules of Court, rule
4.447.) “This rule is intended ‘to avoid violating a statutory prohibition or
exceeding a statutory limitation, while preserving the possibility of
imposition of the stayed portion should a reversal on appeal reduce the
unstayed portion of the sentence.’ ” (People v. Lopez (2004) 119 Cal.App.4th
355, 364 [addressing former Cal. Rules of Court, rule 4.447].)
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1170.1, subdivision (f) or (g), as explained in People v. Rodriguez, supra, 47
Cal.5th 501 and People v. Le, supra, 61 Cal.4th 416, then stay under section
654 Magana’s sentences on counts 2 and 4. The court shall forward a
certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects the judgment is
affirmed.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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