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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                                  2d Crim. No. B244041
                                                                          (Super. Ct. No. 2009007662)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

GREGORIO AGUILAR,

     Defendant and Appellant.



                   Gregorio Aguilar appeals from the judgment 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,
                       1
subd. (a)(17)(A)) , attempted second degree robbery (count 2; 664/211), second degree
robbery (count 3; § 211), and attempted second degree robbery (count 4; §§ 664/211).
The jury found that appellant personally and intentionally discharged a firearm causing
death in counts 1 and 2 (§ 12022.53, 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.
years state prison on counts 3 and 4, and, on count 1, to a consecutive indeterminate term
                                                                                            2
of life without possibility of parole plus 25 years to life on the firearm use enhancement.
              Appellant contends that his sentence of life without parole for special
circumstance first-degree murder, plus 25 years 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 masked man, demanded money, and shot and
killed the store clerk, Sean Odle, with a .22 caliber rifle. (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 Martinez, 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 Liquor 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 playing 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 informant, Adam Solorio, that "I killed my
first man" and that he committed the Ventura, Fillmore and Santa Paula crimes.


2
  On count 3 for robbery, the trial court imposed a three-year term plus 10 years for use of
a firearm (§ 12022.53, subd. (b)). Appellant received a consecutive eight month sentence
(1/3 the two-year midterm) on count 4 for attempted robbery plus 40 months on the
firearm enhancement, for an aggregate determinant sentence of 17 years state prison.
On count 1 for special circumstance first degree 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 sentence on count 2 for attempted robbery was stayed pursuant
to section 654.


                                              2
                                     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 jeopardy 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 premised on the theory
that the section 12022.53, subdivision (d) firearm enhancement (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 Supreme 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 wrongly 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 conviction. And it protects against
multiple punishments for the same offense. [Citation.]' [Citation.]" (Sloan, supra, 42
Cal.4th at pp. 120-121.) The first two categories of double jeopardy protection do not
apply because appellant's conviction and punishment for the murder and firearm
enhancement occurred in a single unitary proceeding. (Id., at p. 123.) "We are not here
concerned with a retrial or 'second prosecution,' but instead with a unitary trial in which
section 954 expressly permits conviction 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 when


                                              3
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 where they proscribe the same conduct, if the
legislature has specifically authorized cumulative punishment. (Sloan, supra, 42 Cal.4th
at p. 121, citing Missouri v. Hunter (1983) 459 U.S. 359, 368-369 [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 shall be an additional and
consecutive term of imprisonment to murder. Because it is additional punishment, it does
not violate the double jeopardy provision 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 offenses. The argument was
rejected by our state Supreme Court in Izaguirre, supra, 42 Cal.4th at pages 128-129 and
Sloan, supra ,42 Cal.4th at page 121, a companion case. "The holding in Sloan is
consistent with this court's recent decision in People v. Reed (2006) 38 Cal.4th 1224 . . . ,
which held that the legal elements test, rather than the accusatory pleading test, should be
used in determining whether conviction of a charged offense is barred under the [multiple
conviction] rule. Since enhancements are not legal elements of the offenses to which
they attach, they are not considered in defining necessarily 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 charged offense, an enhancement allegation is not to be


                                              4
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 considered in determining whether the defendant can be convicted
of multiple charged crimes based on necessarily included offenses . . . ." (Sloan, supra,
42 Cal.4th at p. 114.)
              The rule prohibiting multiple convictions requires that the statutory
elements of the greater offense include all the 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 offense" for double jeopardy purposes, courts look to see if
the offenses require proof of a fact 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 "same offense" or a lesser included offense of the other
under Walcott, Reed, or Blockburger. Murder requires malice aforethought but the
firearm use enhancement does not. A section 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 similar argument was rejected in Izaguirre. There,
defendant argued that his convictions for two firearm enhancements should have been
stricken because they were necessarily included in his conviction 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 enhancements in question stood to increase punishment,
Apprendi's holding, grounded on the Fifth Amendment right to due process and Sixth


                                              5
Amendment right to jury trial, requires only that they be tried 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 offenses or convictions for purposes of the
multiple conviction rule . . . ," noting it has no support in case law. (Id. at p. 134.)
"Conduct enhancements cannot be imposed standing alone as additional punishment. By
definition, an enhancement is 'an additional term of imprisonment added to the base
term.' [Citations.] For that reason alone, an enhancement 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 trial court sentenced appellant to life without
possibility of parole, plus 25 years to life on count 1. The 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.2d at pp. 543-544].) Under the
doctrine of stare decisis, these cases are dispositive (Auto Equity Sales, Inc. v. Superior
                                     3
Court supra, 57 Cal.2d at p. 455.)
       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 Rehabilitation 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 pronouncements of the United
States Supreme Court (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p.
455), and reject appellant's contention.

                                               6
abstract of judgment reflecting that appellant was sentenced on count 1 to life without
possibility of parole, plus 25 years to life on the section 12022.53, 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.




                                             7
                              Charles W. Campbell, Judge

                           Superior Court County of Ventura

                          ______________________________


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


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Tannnaz Kouhpainezhad, Deputy Attorney
General, for Plaintiff and Respondent.




                                           8
