Filed 1/6/20 P. v. Gonzales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

RAYMOND JULIAN GONZALES,

Defendant and Appellant.

E070827

(Super.Ct.No. FVI17003248)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed in part; reversed in part with directions.

Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Collette Cavalier and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Raymond Julian Gonzales, guilty of first degree murder. (Pen. Code, § 187, subd. (a).) The jury found true the allegation that defendant personally used a deadly or dangerous weapon during a carjacking (§ 12022, subd. (b)(2)). The jury found defendant not guilty of conspiracy to commit murder. (§ 182, subd. (a)(1).) The trial court found defendant suffered two prior strike convictions (§ 1170.12), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior conviction for which he served a prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a determinate term of six years, and a consecutive indeterminate term of 75 years to life.

Defendant raises two issues on appeal. First, defendant contends the trial court erred by denying his motion to set aside the conspiracy charge after the preliminary hearing because there was not independent corroboration of an in-custody informant’s statement. Second, defendant asserts the case should be returned to the trial court so that it may exercise its discretion concerning imposing the five-year sentence for the prior serious felony (§ 667, subd. (a)(1)). (Sen. Bill No. 1393 (2017–2018 Reg. Sess.).) We affirm in part and reverse in part with directions.

FACTUAL AND PROCEDURAL HISTORY

A. MURDER

On June 30, 2014, Javier Haro (Haro) was 15 years old. On that day, Haro was in a garage with his grandfather, Manuel Cardona Medrano (the victim). The victim was listening to music, drinking beer, and relaxing. Haro’s uncle, defendant, entered the garage. Haro heard a scuffle and turned toward the noise. Haro saw defendant stabbing the victim. The victim suffered 13 stab wounds, four of which were fatal. The victim’s cause of death was multiple stab wounds.

B. PRELIMINARY HEARING

In a second amended complaint, the People alleged defendant conspired to kill Haro. Sergeant Edward Bachman, a law enforcement officer, testified at defendant’s preliminary hearing. On June 16, 2016, Bachman interviewed John Still, who “was in custody at the High Desert Detention Center.” Still and defendant had been in the same housing unit and had known one another since they were teenagers.

Still told Bachman, “Because Haro was a witness [to] the murder, [defendant] formed a plan to have Mr. Haro hit or murdered so he couldn’t identify him in the murder—or couldn’t testify in the murder.” In order to kill Haro, defendant had to obtain permission from the Mexican Mafia. Ultimately, defendant obtained approval for Haro’s murder. Defendant wrote a letter “to Chewco (phonetic) from Pomona Trece and had directions—had information on Haro, including his name, age, address, his mother’s information, vehicle information, and also a local burger stand that Haro was known to frequent.” Still read the letter that defendant wrote about Haro. Still told Bachman that Haro’s “murder was supposed to look gang related.”

At the preliminary hearing, the prosecutor requested the trial court hold defendant to answer for the charged crimes, including the count 2 charge of conspiracy. Defendant’s trial counsel said, “I ask not to hold on Count 2. Count 2 seems to make reference based on June 30th, 2014, to the alleged murder of [the victim], but the facts that I heard support some type of conspiracy to come after a witness in this case named Javier Haro. I don’t think Count 2 has been met either, your Honor.” The trial court held defendant to answer on all of the charges.

DISCUSSION

A. PRELIMINARY HEARING

Defendant contends the trial court erred by denying his request “to set aside the conspiracy charge [because] [i]n-custody informant testimony requires corroboration. (§ 1111.5, subd. (a).)” The People contend defendant failed to preserve this issue for appellate review because defendant did not raise this issue in the trial court. Defendant asserts his argument in the trial court was broad enough to encompass this issue. We will address the merits of the issue.

We apply the de novo standard of review. (People v. Mejia (2019) 36 Cal.App.5th 859, 866.) “[W]e first look to the language of the statute, giving the individual words ‘their “usual and ordinary meanings.” ’ ” (Ibid.)

Section 1111.5, subdivision (a), provides, “A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant. The testimony of an in-custody informant shall be corroborated by other evidence that connects the defendant with the commission of the offense, the special circumstance, or the evidence offered in aggravation to which the in-custody informant testifies. Corroboration is not sufficient if it merely shows the commission of the offense or the special circumstance or the circumstance in aggravation. Corroboration of an in-custody informant shall not be provided by the testimony of another in-custody informant unless the party calling the in-custody informant as a witness establishes by a preponderance of the evidence that the in-custody informant has not communicated with another in-custody informant on the subject of the testimony.” (§ 1111.5, subd. (a).)

In discussing accomplice testimony, our Supreme Court wrote, “Section 1111 supplements the policy that testimony of an accomplice shall be regarded with distrust by barring a conviction of a defendant based solely upon the uncorroborated testimony of an accomplice, even though such testimony may convince the jury beyond a reasonable doubt. ‘The requirement of section 1111 of the Penal Code is in addition to the requirement of the doctrine of reasonable doubt; it in effect says that even though the jury are convinced to a moral certainty that the defendant is guilty, yet they must acquit him if the testimony of the accomplice is not corroborated by other evidence, which connects him or tends to connect him with the offense charged.’ [Citations.] Thus, by prohibiting a conviction based solely upon the uncorroborated testimony of an accomplice, section 1111 precludes a result that might otherwise follow from such testimony. It is explicit and complete in defining the result that it precludes. In restricting its prohibition to a conviction, section 1111 is in harmony with the principle that less evidence is required to support a determination of probable cause for a commitment than a determination of guilt for a conviction.” (People v. McRae (1947) 31 Cal.2d 184, 186-187, italics added.)

In section 1111.5, the requirement for corroboration of an in-custody informant’s testimony is limited to convicting a defendant, finding a special circumstance to be true, or using a fact in aggravation. (§ 1111.5, subd. (a).) Holding a defendant to answer is not among the situations that require corroboration of an in-custody informant’s testimony. Therefore, we conclude the trial court did not err by denying defendant’s request to set aside the conspiracy charge.

In defendant’s reply brief, he asserts the trial court erred in holding him to answer because “the prosecution provided no information leading to a conclusion Still was a reliable informant. Bachman testified that though he relayed Still’s story to the homicide division, Bachman conducted no investigation confirming Still’s story.”

In the context of search and seizure, “[t]he core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable. Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of supplying reliable information, or if it is corroborated by independent evidence.” (U.S. v. Williams (Eighth Cir. 1993) 10 F.3d 590, 593.)

“The function of a preliminary hearing is to determine whether there is probable cause to hold the accused for trial.” (Ruiz v. Superior Court (1994) 26 Cal.App.4th 935, 939.) However, one cannot rely upon search and seizure cases when discussing the probable cause requirement for a preliminary hearing “because of significant differences in the purpose of determinations made in [search and seizure] proceedings compared with the limited purpose of the preliminary hearing.” (Id. at p. 940.) “In a felony preliminary hearing, the magistrate must decide whether the evidence is sufficient to hold a defendant to answer. [¶] . . . [A]n opportunity to cross-examine a qualified police officer is sufficient at a pretrial probable cause hearing under United States Supreme Court jurisprudence.” (Id. at p. 941.)

In the context of a search warrant, one is looking at an informant’s statement within an affidavit in an ex parte situation. (Ruiz v. Superior Court, supra, 26 Cal.App.4th at p. 940.) At a preliminary hearing, the defendant has the opportunity to cross-examine the police officer about the informant’s statements and the opportunity to call witnesses to impeach the testimony of the prosecution’s witnesses. (Id. at pp. 941-942.) Further, the law permits probable cause, at a preliminary hearing, to “be based in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted.” (§ 872, subd. (b).) The law enforcement officer must have “either five years of law enforcement experience or [have] completed a training course . . . that includes training in the investigation and reporting of cases and testifying at preliminary hearings.” (§ 872, subd. (b).) The preliminary hearing and search and seizure procedures are roughly analogous, in that they both involve probable cause (Ruiz, at p. 941), but there are sufficient differences such that we do not find defendant’s reliance on the search and seizure requirements to be persuasive. Therefore, we are not persuaded that the trial court erred.

B. SENTENCING

1. PROCEDURAL HISTORY

Defendant filed a motion seeking to have the trial court dismiss his prior strikes. In denying the motion, the trial court said, “I think it would be an abuse of discretion for me to strike in this case, [defense counsel]. [¶] My final analysis is I’m not going to do it. I’m not of the opinion it would be appropriate. I also just, as I said, even if I thought I could exercise my discretion in that manner, I wouldn’t do it because I don’t think it’s an appropriate case to do so. So your Romero motion is denied.” The trial court did not impose a sentence for the prison prior enhancement. (§ 667.5, subd. (b).)

2. ANALYSIS

Defendant contends the case should be returned to the trial court so that the trial court may exercise its discretion regarding striking the five-year sentence for the prior serious felony enhancement (§ 667, subd. (a)(1)). (Senate Bill No. 1393 (2017–2018 Reg. Sess.).) The People contend the trial court would have imposed the five-year sentence if it had discretion at the time of sentencing, so there is no need to return the matter to the trial court.

Defendant was sentenced on June 8, 2018. At that time, imposition of the section 667, subdivision (a)(1) five-year enhancement for prior serious felony convictions was mandatory. (Former § 1385, subd. (b), amended by Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019 [“This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667”].) After defendant’s sentencing, the Governor signed Senate Bill No. 1393, which deletes the provision of section 1385 that made imposition of a five-year sentence for a section 667 prior serious felony conviction enhancement mandatory, thereby permitting trial courts to strike such enhancements when found to be in the interest of justice. (Sen. Bill No. 1393 (2017–2018 Reg. Sess.) §§ 1, 2.) The legislative changes made by Senate Bill No. 1393 took effect on January 1, 2019.

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ [Citation.] In such circumstances, . . . the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

The trial court’s comments regarding defendant’s motion to dismiss his prior strikes does not clearly indicate that the trial court would have refused to strike the five-year enhancement. In reading the trial court’s comments, the trial court expressed its belief that it would not be appropriate to dismiss the strikes, but the trial court did not express any thoughts regarding the prior serious felony enhancement. Therefore, we are not persuaded that the record “clearly indicates” the trial court would have refused to strike the five-year enhancement. We will reverse the five-year sentence enhancement so the trial court may exercise its discretion. We take no position on whether the five-year sentence enhancement should be stricken or imposed.

DISPOSITION

The five-year prison sentence (§ 667, subd. (a)(1)) is reversed. The trial court is directed to exercise its discretion and either strike the five-year punishment (§ 1385, subd. (b)(1)) or impose the five-year prison sentence (§ 667, subd. (a)(1)). Following resentencing, 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

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.