Filed 9/18/13 P. v. Aguilar CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent,

v. GREGORIO AGUILAR, Defendant and Appellant. 2d Crim. No. B244041 (Super. Ct. No . 2009007662) (Ventura County)

Gregorio Aguilar appeals from the j udgment entered after a jury convicted him of first degree murder with the special circumstance finding that the murder was committed during an attempted robbery (count 1; Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(17)(A)) 1 , attempted second degree robbery (c ount 2; 664/211), second degree robbery (count 3; § 211), and a ttempted second degree robbery (c ount 4; §§ 664/211). The jury found that appellant personally and intentionally discharged a firearm causing death in counts 1 and 2 (§ 1 2022.53, subd. (d)), and personally used a firearm in counts 3 and 4 (§ 12022.53, subd. (b)). Appellant was sentenced to a determinate term of 17

1 All statutory references are to the Penal Code.2 years state prison on counts 3 and 4, and, on count 1, to a consecutive indeterminate term of life without possibility of parole plus 25 years to life on the firearm use enhancement. 2 Appellant contends that his senten ce of life without parole for special circumstance first-degree murder, plus 25 ye ars to life on the firearm use enhancement (§12022.53, subd. (d)) violates California's multiple conviction rule and federal double jeopardy principles. We affirm with directions to issue an amended abstract of judgment.

Facts During the early morning hours of December 28, 2008, appellant entered the Circle K Market in Ventura with a ma sked man, demanded money, and shot and killed the store clerk, Sean Odle, with a .22 caliber rifl e. (Counts 1 and 2.) Shortly before midnight on December 11, 2008, appellant robbed Marisela Martinez, a cashier at the Shell Gas Station in Fillmore. Wearing a bandanna, gloves and a beanie, appellant pointed a rifle at Martin ez, demanded money, and fled with $300 to $400. (Count 3.) Shortly before midnight on December 12, 2008, appellant attempted to rob Touni Ziab at the Central Liqu or and Market in Santa Paula with a rifle. (Count 4.) Wearing a bandanna and dark hooded sweatshirt, appellant confronted Ziab and said “Give me all the fucking money. I ain’t playi ng around with you." Appellant fled after Ziab called out for his brother-in-law to get a gun and call 911. (Count 4). In 2009, appellant told a police inform ant, Adam Solorio, that "I killed my first man" and that he committed the Vent ura, Fillmore and Sant a Paula crimes.

2 On count 3 for robbery, the tr ial court imposed a three-year term plus 10 years for use of a firearm (§ 12022.53, subd. (b)). Appellant received a cons ecutive eight month sentence (1/3 the two-year midterm) on count 4 for attempted robbery plus 40 months on the firearm enhancement, for an aggr egate determinant sentence of 17 years state prison. On count 1 for special circumstance first de gree murder, appellant was sentenced to life without possibility of parole, plus 25 years to life for use of a firearm causing death (§ 12022.53, subd. (d)). The senten ce on count 2 for attempted robbery was stayed pursuant to section 654.3 Double Jeopardy Appellant asserts that the sentence of life without possibility of parole for special circumstance first degree murder, plus 25 years to life on the firearm use enhancement violates federal principles of double jeopar dy and the California multiple conviction rule embodied in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and People
v. Pearson (1986) 42 Cal.3d 351, 355, 359-360). The argument is prem ised on the theory that the section 12022.53, subd ivision (d) firearm enhancemen t (i.e., use and discharge of the rifle resulting in death) requires proof that appellant proximately caused the victim's death, a factual element necessarily subsumed within the elements of murder. Appellant acknowledges that the California Suprem e Court rejected similar arguments in People v. Sloan (2007) 42 Cal.4th 110, 115-124 ( Sloan ), and People Izaguirre (2007) 42 Cal.4th 126, 130-134 ( Izaguirre ) but believes the cases were wron gly decided. We are bound by the rulings of our Supreme Court ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and reject appellant's contention. With respect to double jeopardy, " '[ t]he Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conv iction. And it protects against multiple punishments for the same o ffense. [Citation.]' [Citation.]" ( Sloan, supra, 42 Cal.4th at pp. 120-121.) The first two cate gories of double jeopa rdy protection do not apply because appellant's conviction and punishment for the murder and firearm enhancement occurred in a si ngle unitary proceeding. ( Id. , at p. 123.) "We are not here concerned with a retrial or 's econd prosecution,' but instead w ith a unitary trial in which section 954 expressly permits c onviction of more than one crime arising out of the same act or course of conduct." ( Izaguirre , supra, 42 Cal.4th at p. 134.) With respect "to the third category of double protection - the prohibition of 'multiple punishments for the same offense' [citation] - the [United States] Supreme Court has made clear that '[t]he [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense [citations] . . . and then only when4 such occurs in successive proceedings, [citation]'. [Citation.]" ( Sloan , supra, 42 Cal.4th at p. 121, quoting Hudson v. United States (1997) 522 U.S. 93, 99 [139 L.Ed.2d 450, 459].) Federal law, like California statutory law, recognizes that cumulative punishment may be imposed under two statutes, even wher e they proscribe the same conduct, if the legislature has specifically auth orized cumulative punishment. ( Sloan, supra, 42 Cal.4th at p. 121, citing Missouri v. Hunter (1983) 459 U.S. 359, 36 8-369 [74 L.Ed.2d 535, 543- 544].) The California Legislature has provided that the punishment on the section 12022.53, subdivision (d) firearm use enhancement sh all be an additional and consecutive term of imprisonment to murder. Because it is additional punishment, it does not violate the double jeopardy provi sion against double punishment. ( Izaguirre, supra, 42 Cal.4th at pp. 128-134; . Sloan, supra, 42 Cal.4th at p. 123; Plascencia v. Alameida (9th Cir. 2006) 467 F.3d 1190, 1204.) Multiple Conviction Rule Appellant contends that the true finding on the section 12022.53, subdivision (d) firearm enhancement violates California's multiple conviction rule which prohibits multiple convictions of necessarily included of fenses. The argument was rejected by our state Supreme Court in Izaguirre, supra, 42 Cal.4th at pa ges 128-129 and Sloan , supra , 42 Cal.4th at page 121, a comp anion case. "The holding in Sloan is consistent with this co urt's recent decision in People v. Reed (2006) 38 Cal.4th 1224 . . . , which held that the legal elemen ts test, rather than the accusatory plea ding test, should be used in determining whether co nviction of a charged offense is barred under the [multiple conviction] rule. Since enhancements are no t legal elements of the offenses to which they attach, they are not cons idered in defining necessari ly included offenses. . ." ( Izaguirre, supra, 42 Cal. 4th

. at p. 128.) The distinction between "offenses " and "enhancements" is based on People v. Walcott (1983) 34 Cal.3d 92, which holds that for purposes of determining whether an offense is included in a ch arged offense, an enhancemen t allegation is not to be5 considered. ( Id. , at pp. 100-101.) The Walcott rule was reaffirmed by our state supreme court in People v. Reed , supra , 38 Cal.4th 1224, 1231, and Sloan : "[E]nhancements are neither recognized nor consider ed in determining whether the defendant can be convicted of multiple charged crimes based on necessa rily included offe nses . . . ." ( Sloan, supra, 42 Cal.4th at p. 114.) The rule prohibiting multiple convic tions requires that the statutory elements of the greater offense include all th e statutory elements of the lesser offense. ( People v. Reed , supra, 38 Cal.4th at pp. 1228-1229.) Similarly, in determining whether two offenses are the "same o ffense" for double jeopardy purpo ses, courts look to see if the offenses require proof of a fa ct that the other does not. ( Blockburger v. United States (1932) 284 U.S. 299, 304 [76 L.Ed. 306, 309] ( Blockberger ).) Murder and the firearm use enhancement are not the "s ame offense" or a lesser incl uded offense of the other under Walcott , Reed, or Blockburger . Murder requires malice aforethought but the firearm use enhancement does not. A se ction 12022.53, subdivision (d) firearm enhancement requires use of a firearm but murder does not. Apprendi Appellant argues that Wolcott has been superseded by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] ( Apprendi ) and its progeny ( Sattazahn v. Pennsylvania ( 2003) 537 U.S. 101 [154 L.Ed.2d 588] and Ring v. Arizona (2002) 536 U.S. 584 [153 LEd.2d 556].) A sim ilar argument was rejected in Izaguirre. There, defendant argued that his convictions for tw o firearm enhancements should have been stricken because they were n ecessarily included in his convic tion for first degree murder with a drive-by shooting special circumstance. ( Izaguirre, supra, 42 Cal.4th at pp. 129– 130, 132.) The Izaguirre court concluded that Apprendi is inapposite to the question of whether enhancements must be considered in defining necessarily included offenses for purposes of the multiple conviction rule. ( Izaguirre, supra, 42 Cal.4th at p. 133.) "To the extent the firearm-related enhan cements in question stood to increase punishment, Apprendi's holding, grounded on the Fifth Amendm ent right to due process and Sixth6 Amendment right to jury trial, requires only that they be tr ied to a jury and found true beyond a reasonable doubt, which they were." ( Ibid .) The court in Izaguirre rejected the argument that "conduct enhancements are the functional equivalent of completed o ffenses or convictions for purposes of the multiple conviction rule . . . ," noti ng it has no support in case law. ( Id. at p. 134.) "Conduct enhancements cannot be imposed sta nding alone as additional punishment. By definition, an enhancement is 'an additional term of impr isonment added to the base term.' [Citations.] For that reason alone, an enhanc ement cannot be equated with an offense. [Citation.]" ( Ibid .) Conclusion Based on the guilty verdict and true finding on the section 12022.53, subdivision (d) firearm enhancement, the tria l court sentenced appellant to life without possibility of parole, plus 25 years to life on count 1. Th e argument that the sentence violates the multiple conviction rule and constitutional protections against double jeopardy has been rejected by the California Supreme Court ( Sloan, supra, 42 Cal.4th 114, 120- 121; Izaguirre, supra, 42 Cal.4th at pp. 128-129) and the United States Supreme Court ( Hudson v. United States, supra, 522 U.S. at pp. 95-96 [139 L.Ed.2d at 459]; Missouri v. Hunter, supra, 459 U.S. at p. 368 [74 L.Ed.2 d at pp. 543-544].) Under the doctrine of stare decisis, th ese cases are dispositive ( Auto Equity Sales, Inc. v. Superior Court supra, 57 Cal.2d at p. 455.) 3 The abstract of judgment fails to reflect that appellant was sentenced to 25 years to life on the Count 1 firearm enhancement. The clerk of the superior court is ordered to prepare and forward to the Department of Corrections and Reha bilitation an amended

3 Appellant contends Apprendi , supra, 530 U.S. 466 [147 L.Ed.2d 435] and Sattazahn v. Pennsylvania, supra, 537 U.S. 101 [154 L.Ed.2d 588] compel a reassessment of Hudson v. United States, supra, 522 U.S. 93 [139 L.Ed.2d 450] and Missouri v. Hunter, supra, 459 U.S. 359 [74 L.Ed.2d 535]. We are bound by the pr onouncements of the United States Supreme Court ( Auto Equity Sales, Inc. v. Superior Court , supra, 57 Cal.2d at p. 455), and reject appe llant's contention.7 abstract of judgment reflecting that appella nt was sentenced on c ount 1 to life without possibility of parole, plus 25 y ears to life on the section 120 22.53, subdivision (d) firearm enhancement. The judgment in all other respects is affirmed. NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.8 Charles W. Campbell, Judge Superior Court County of Ventura

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Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Gene ral, Scott A. Taryle, Supervising Deputy Attorney General, Ta nnnaz Kouhpainezhad, Deputy Attorney General, for Plain tiff and Respondent.