People v. Bracamonte

• Decision Date: 27 February 2003
• Docket Number: No. B151466.,B151466.
• Citation: 106 Cal.App.4th 704,131 Cal.Rptr.2d 334
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Louie BRACAMONTE et al., Defendants and Appellants.

131 Cal.Rptr.2d 334

106 Cal.App.4th 704

The PEOPLE, Plaintiff and Respondent, v. Louie BRACAMONTE et al., Defendants and Appellants.

No. B151466.

Court of Appeal, Second District, Division 4.

February 27, 2003.

Certified for Partial Publication.^*

As Modified on Menial of Rehearing April 1, 2003.

Review Denied May 14, 2003.

Corinne S. Shulman, under appointment by the Court of Appeal, Hydesville, for Defendant and Appellant Louie Bracamonte.

Jo Anne D. Roake, under appointment by the Court of Appeal, for Defendant and Appellant Jose Luis Medina.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Valerie A. Baker, Deputy Attorneys General, for Plaintiff and Respondent.

CURRY, J.

Louie Bracamonte and Jose Luis Medina (collectively, appellants) appeal from their respective judgments following a jury trial that resulted in their conviction of first degree murder (Pen.Code, § 187, subd. (a); count 1)¹ and first degree robbery (§ 211; count 3) and true findings on the allegations that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)); that during the offenses Bracamonte used a weapon (blunt instrument) (§ 12022, subd. (b)(1)); and that as to Medina, he personally and intentionally discharged a firearm which inflicted great bodily injury (GBI) or death (former §§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d)). Bracamonte was sentenced to life without the possibility of parole (LWOP), plus one year for the weapon use enhancement, on count 1 and to a concurrent term of five years, i.e., the four-year middle term on his conviction plus one year for the weapon use enhancement, on count 3. Medina was sentenced on count 1 to LWOP, plus 25 years to life on a firearm discharge and use enhancement. The court imposed a concurrent term of four years for his robbery conviction in count 3. The court also imposed and stayed certain firearm discharge and use enhancements as to counts 1 and 3.

[[]]^**

Appellants attack their respective sentences on the ground the multiple punishment bar of section 654 compels their sentence on count 3 to be stayed. Medina further contends two of his three stayed firearm discharge and use enhancements on count 3 must be stricken as well all three of those enhancements as to count 1.

Based on our review of the record and applicable law, we conclude the trial court erred in failing to stay the four-year term for appellants' convictions on count 3 and in its disposition of the firearm discharge and use findings on counts 1 and 3 as to Medina. In all other respects, we affirm the judgment.

FACTUAL SUMMARY

We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103.) The following summary is based on this appellate standard of review.

On January 21, 2000, around 4:00 or 5:00 p.m., Joey Kovall was inside his home on West Bonita in Glendora when he told Audra Mahlke, his girlfriend, that after he removed his shirt during a fight with Steve Sierra, Sierra said he would be back and left. Kovall cautioned Mahlke they need to be careful that night. Kovall and Mahlke sold marijuana and methamphetamine.

Around 7:30 p.m., someone knocked on Kovall's front door. At home with Kovall was Mahlke, Allen Baldwin, Jason Reader, and someone called "Clown." When Kovall asked who was there, a voice responded, "Mike." After Kovall opened the door and identified himself in response to Medina's request for "Joey[,]" Medina pulled out a gun, pointed it at Kovall, and said, "Break yourself." "Break yourself to Reader meant Kovall was expected to hand over everything he had. Mahlke believed it meant "[g]ive him what you have or run[.]" Medina then fired the gun. Afterwards, appellants and another man rushed inside. Medina and Kovall fought in the living room as Malke, Reader, Baldwin, and Clown fled to other parts of the house.

From her hiding place, Mahlke saw Kovall hitting Medina with both hands and Bracamonte hit Kovall with a black, shiny object. When Mahlke ran out the back door, she heard someone say "shoot him" twice and afterwards heard at least three gunshots. Looking back, she saw appellants leap over the couch, remove something from the living room floor, jump back and exit the front door. Mahlke's purse and Kovall's bat were later discovered missing.

Around that time, Michelle Giampaolo and her boyfriend, drove up to Kovall's residence to buy drugs. Upon seeing Bracamonte and Andrew Hernandez standing at Kovall's front door, Giampaolo went around to the back door. She heard the front door open, someone outside yell, "Break yourself and then five gunshots. Afterwards, she saw Bracamonte and Hernandez run out the front door to Sierra's waiting truck.

Around 7:30 p.m. while passing by in his car, Brian Majerus observed two or more individuals run out of the house and enter a white truck through the passenger door. One was holding a purse and a bat. Someone was seated in the driver's seat.

Mahlke identified Medina and Bracamonte from photographic lineups. She recognized Bracamonte as the attacker who wielded the black object.

Around 11:15 p.m., after the police stopped Sierra in his white truck, a bloodstain matching Kovall's blood type was found in the truck.

Kovall sustained two gunshot wounds. The wound through his chest, heart, and left lung was fatal. Kovall also sustained numerous fractures to his head and skull. Such fractures also contributed to his death.

Medina presented evidence to support his alibi and mistaken identity defenses. Bracamonte also presented evidence in support of his mistaken identity defense.

DISCUSSION

1.-5.^***

6. Section 65b Compels Staying of Count 3 Sentences

Appellants contend, and respondent concedes, their respective four-year terms imposed on count 3 must be stayed under the multiple punishment bar of section 654. We find their joint contention to be meritorious. (See, e.g., People v. Meredith (1981) 29 Cal.3d 682, 696, 175 Cal.Rptr. 612, 631 P.2d 46 [conviction of, but not punishment for, both felony murder and the related robbery proper]; People v. Boyd (1990) 222 Cal.App.3d 541, 575-576, 271 Cal.Rptr. 738 [robbery sentence stayed under section 654 where robbery was crime underlying first degree felony murder conviction].)

Bracamonte further contends his one-year weapon use enhancement on that count also must be stayed. We agree. Where the base term of a sentence is stayed under section 654, the attendant enhancements must also be stayed. (See, e.g., People v. Guilford (1984) 151 Cal. App.3d 406, 411, 198 Cal.Rptr. 700.)

7. Correction of Medina's Firearm Discharge and Use Enhancements Warranted

Medina contends two of his three stayed firearm discharge and use enhancements on count 3 must be stricken as well as all three of those enhancements as to count 1. We find the court committed various errors in sentencing Medina on the firearm discharge and use findings as to counts 1 and 3.

In pertinent part, the information alleged that in the commission of the offenses pleaded in counts 1 and 3, Medina "personally used" a handgun (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)) and he "personally and intentionally discharged" a handgun (§ 12022.53, subd. (c)) "which proximately caused . . . death" to Kovall (§ 12022.53, subd. (d)). The jury found these allegations to be true.

There is an apparent conflict between the clerk's transcript and the reporter's transcript regarding which enhancements were imposed and which were stayed. The clerk's transcript recites that on count 1, the court imposed an enhancement of "25 years to li[f]e" pursuant to section "1203.06A(A)(1) [sic ]" and that the "remaining" enhancements pursuant to sections "12022.5, 12022.53(B), 12022.53(D) and 12022.53(C)" were "imposed but stayed pursuant to . . . section 654." With respect to count 3, the court did not expressly impose any enhancement of 25 years to life. Rather, the "[s]entence as to allegations [sic ] pursuant to . . . sections 1203.06(A)(1), 12022.5(A)(1), 12022.53(B) and 12022.53(D) is imposed and stayed pursuant to . . . section 654." The court made no ruling regarding the finding under subdivision (c) of section 12022.53 on count 3.

In contrast, the reporter's transcript reflects that as to count 1, the court imposed a "25 [years] to life" enhancement for "personal use of a firearm" pursuant to section "12022.53 (c) [sic ][.]" In discussing Medina's sentence on count 3, the court ruled that having imposed such enhancement on count 1, "all [remaining] allegations[sic] relating to personal use of a firearm are stayed by virtue of 654 and/or subdivision [(f)] of 12022.53. The remaining special allegations [sic ] as to count 1, specifically, 12022.5,12022.53, subdivision [ (b) ], 12022.53(d), are imposed but stayed by virtue of 654 as to 12022.5 and by virtue of subdivision [(f)] of 12022.53(B) [sic]."

We need not determine which transcript reflects the correct record. Under either scenario, the court was incorrect in the sentence it imposed with regard to the personal discharge and use findings.

Initially, we deem the 25 years to life enhancement on count 1 to have been imposed pursuant to subdivision (d) of section 12022.53, rather than under section 1203.06, subdivision (c) of section 12022.53 or some other section.

A plain reading of section 1203.06 reveals it does not pertain to the imposition of any enhancement for the discharge or use of a firearm. Subdivision (c) of section 12022.53 mandates a consecutive 20-year enhancement for a qualifying felony conviction during which the defendant "intentionally and personally discharges a firearm," and thus, cannot serve as the authority for imposition of a 25 years to life enhancement....