People v. Salas (2001)

THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR SALAS, Defendant and Appellant.

[Modification of opinion (89 Cal. App. 4th 1275; 108 Cal.Rptr.2d 137) on denial of petition for rehearing.]

THE COURT. fn. † -

The opinion filed June 14, 2001, is modified in the following particulars: [90 Cal. App. 4th 886b]

1. On page 2, typed opinion lines 15-16 [89 Cal. App. 4th 1277, advance report, 1st par., lines 16-17], delete the following, "based on the present record because there was no finding he personally used a firearm."

2. On page 2, lines 18-19 [89 Cal. App. 4th 1278, advance report, lines 3-4], delete the following, "We remand for a limited retrial on the issue of whether defendant personally used a firearm."

3. Delete the entirety of the analysis on page 13 [89 Cal. App. 4th 1282, advance report, 1st par., and page 1283, lines 1-16] of the opinion. In its place insert the following:

"The Attorney General argues that we should remand for a limited retrial on the issue of whether defendant personally used a firearm. By contrast, defendant argues that the prosecution has waived the right to a finding of personal firearm use. Prior to instructing the jury, a conference was held concerning instructions. No instructions were proposed concerning personal firearm use. The trial court asked both counsel if they had any objections to the proposed instructions. Both the prosecutor and defense counsel answered in the negative. A discussion was then held concerning the verdict forms. As noted previously, none of the verdict forms referred to personal firearm use by defendant. The trial court asked both the prosecutor and defense counsel if they had any objections to verdict forms. Again, both the prosecutor and defense counsel answered in the negative. Thus, without objection from the prosecutor, the jury was asked only to determine if "a principal," not defendant, "personally" discharged a firearm. Further, at no time did the deputy district attorney raise the issue of personal firearm use prior to the imposition of judgment.

Defendant argues that the prosecution has waived of the right to secure a personal firearm use finding. We agree. In People v. Najera (1972) 8 Cal. 3d 504, 508-512, disapproved on another ground in People v. Wiley (1995) 9 Cal. 4th 580, 587-588, the prosecution never requested an instruction concerning section 12022.5 personal firearm use. The Supreme Court concluded that the failure of the prosecutor to have sought an instruction concerning section 12022.5 personal firearm use constituted waiver of the issue. The court concluded, "We conclude that the People waived the application of section 12022.5 by failing to have the matter resolved at trial." (Id. at p. 512.) Najera relied upon People v. Spencer (1972) 22 Cal. App. 3d 786, 801 which likewise held that the failure of the prosecutor to seek instruction on firearm use waived the issue in terms of the effort of the Attorney General on appeal to secure a limited retrial on that issue. Later, in [90 Cal. App. 4th 886c] People v. Belcher (1974) 11 Cal. 3d 91, 102, footnote 15, the Supreme Court described its prior holding in Najera and the conclusion of the Court of Appeal in Spencer as follows: "Contrast People v. Najera, supra, 8 Cal.3d at pp. 509-510, and People v. Spencer[, supra,] 22 Cal.App.3d [at p.]801 [], in which the People waived the application of section 12022.5 by failing to take steps at trial to secure verdicts stating the applicability of that section." This waiver analysis is consistent with other California Supreme Court decisions requiring prompt objections in order to raise issues on appeal. (People v. Tillman (2000) 22 Cal. 4th 300, 303 [prosecutorial failure to request § 1202.4, subd. (b)(1) restitution fine in trial court precludes consideration of issue on appeal]; People v. Dennis (1998) 17 Cal. 4th 468, 521 [defendant "made no objections . . . to the asserted misconduct", orig. italics]; People v. Alvarez (1996) 14 Cal. 4th 155, 186 [Sixth Amendment confrontation claim].) Therefore, the judgment must be modified to reflect that defendant is subject to the seven-year minimum parole eligibility date in section 3046, subdivision (a)(1). Given our waiver analysis, we need not address the issue of the application of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 to a prosecutorial right to a limited retrial in connection with an enhancement relating to the commission of the crime as distinguished from a prior conviction allegation and the effect on People v. Wiley, supra, 9 Cal.4th at pages 589-592 and People v. Wims (1995) 10 Cal. 4th 293, 307-309.

4. On pages 14-15 after the heading "IV. DISPOSITION" [89 Cal. App. 4th 1283, advance report], delete the disposition in its entirety. In its place insert the following:

That portion of the judgment which imposes a 15-year minimum parole eligibility date pursuant to Penal Code section 186.22, subdivision (b)(5) is reversed. The judgment is to be modified to reflect that defendant is subject to a 7-year minimum parole eligibility date pursuant to Penal Code section 3046, subdivision (a)(1). The judgment is affirmed in all other respects. The clerk of superior court is to prepare a corrected abstract of judgment which accurately reflects the sentence imposed by the trial court including those matters described in part III.C of this opinion.

Defendant's rehearing petition is denied.

FN †. Before Turner, P. J., and Willhite, J. fn. ‡ , concurred.

FN ‡. Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.