Filed 6/10/15 P. v. Zorich CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049783

         v.                                                            (Super. Ct. Nos. 11WF0253,
                                                                        12WF0101)
DAVID MITCHELL ZORICH,
                                                                       OPINION
     Defendant and Appellant.




                   Appeal from a judgment of the Superior Court of Orange County, Carla
Singer, Judge. Affirmed.
                   Nancy Mazza for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Sean M. Rodriquez, Deputy Attorneys General, for
Plaintiff and Respondent.
                                          *                  *                  *
              Defendant David Mitchell Zorich appeals after a jury convicted him of
aggravated assault and possession of a controlled substance, contending the trial court
erred in not striking his prior “strike” conviction under the “Three Strikes” law, in failing
to stay the sentence on the crime-bail-crime enhancement, and in purportedly failing to
exercise its discretion to strike the crime-bail-crime enhancement. We find no error on
the court’s part and affirm.
                                               I
                                           FACTS
              By way of an amended information consolidating Orange County Superior
Court case Nos. 11WF0253 and 12WF0101, defendant was charged with being a felon in
possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count one; all undesignated
statutory references are to the Penal Code) and actively participating in a criminal street
gang (§ 186.22, subd. (a); count two) on November 3, 2010, assault with force likely to
cause great bodily injury (§ 245, subd. (a)(1); count three) and actively participating in a
criminal street gang (§ 186.22, subd. (a); count four) on April 4, 2011, and with
possessing oxycodone for sale (Health & Saf. Code, § 11351; count five) and possessing
Ecstacy (MDMA) (Health & Saf. Code, § 11377, subd. (a); count six) on January 12,
2012. The information further alleged a gang enhancement (§ 186.22, subd. (b)(1)) in
connection with counts one, three, and five; a great bodily injury enhancement (§
12022.7, subd. (a)) in connection with count three; a crime-bail-crime enhancement (§
12022.1, subd. (b)) in connection with counts five and six; and further alleged defendant
suffered a prior felony conviction within the meaning of the Three Strikes law (§§ 667,
subds. (d), (e)(1); 1170.12, subds. (b), (c)(1))1 and suffered a prior serious felony
conviction (§ 667, subd. (a)(1)).


              1  For ease of reading and because the three strike provisions of the two
statutes are similar, future references to three strike provisions are to section 667 only.


                                              2
              The jury convicted defendant of the felony assault (count three) and found
that defendant personally inflicted great bodily injury during the assault, but found the
attached gang enhancement not true. The jury further found defendant guilty of
possessing Ecstacy (count six) and found true the attached crime-bail-crime
enhancement. The jury acquitted defendant of being a felon in possession of a firearm
(count one), and of actively participating in a criminal street gang (counts two and four).
The jury did not find any gang enhancement true. The jury was unable to reach a verdict
on count five (possession of oxycodone for sale) and the court declared a mistrial on that
count.
              A court trial was held on the crime-bail-crime and prior conviction
allegations. The court found all three allegations true. Due to the issues raised on appeal,
only the facts relating to the charges for which defendant was convicted (counts three and
six) are set forth below.


A. Assault With Force Likely to Cause Great Bodily Injury (Count Three)
              On April 4, 2010, Brandon Rodriguez appeared at the West Justice Center
in Westminster for a court appearance, at which point he was taken into custody. Later
that day, a deputy sheriff working with the in-custody defendants saw Rodriguez’s upper
lip was cut open to his nostrils and the wound appeared to need suturing. When asked
what had happened, Rodriguez said he had fallen and hit his face on the floor. The
deputy took Rodriguez to the Huntington Beach Hospital where he received seven
stitches to his lip. After returning from the hospital, the deputy reviewed a video of what
happened to Rodriguez inside a holding tank at the West Justice Center.
              The tape showed Rodriguez, who was still in civilian clothing, walk into
the cell. It appeared that defendant saw Rodriguez enter the tank. Defendant then turned




                                             3
toward another inmate, Danny Salazar, and walked over to Salazar. It looked as if
defendant and Salazar had a conversation, watched Rodriguez, and followed him to
where he sat down. Defendant stood on Rodriguez’s right side and Salazar stood to
Rodriguez’s left. Salazar took off his shirt, exposing his tattoos. The deputy said she has
seen inmates take off their shirts to expose their tattoos, letting other inmates know who
they are. Defendant struck Rodriguez about the face and body several times. Salazar hit
Rodiguez a couple of times as well.


B. Possession of Oxycondone for Sale (Count Five) and Possession of Ecstacy (Count
Six)
              On January 12, 2010, Deputy Sheriff Timothy Critz of the gang
enforcement team and a number of other deputies conducted a parole search of
defendant’s residence on Adams Street in Midway City. Defendant lived there with his
wife and small child. During the search, Critz found ninety-nine, 30-milligram
oxycodone pills inside a paper bag in a dresser. The pills were not in a prescription bottle
and there was no prescription in the paper bag.
              On a bookshelf in the garage, another deputy found $137 inside a semi-
insulated lunch bag. The money consisted of “mostly small denominations.” Behind the
bag was a prescription bottle in the name of Kerry Fink. Inside the prescription bottle
were ninety-eight, 30-milligram oxycodone pills. In the same vicinity, the deputy found
two small, clear plastic Ziplock bags. One contained four blue pills stamped Telpphone
Pokes, generally referred to as Pokies, and contained MDMA, also known as Ecstacy.
The other contained two small green tablets stamped with an unknown design and
believed to contain MDMA. Underneath the shelf was a box for 150 sandwich bags. The
box contained only 10 sandwich bags.




                                             4
                                              II
                                       DISCUSSION
A. The Court did Not Err in Denying Defendant’s Request to Strike a Prior “Strike.”
              Under the Three Strikes law (§ 667, subds. (b)-(i)), a defendant who has
been convicted of a felony and who has previously been convicted of a serious or violent
felony, is to be sentenced to double the amount of time he or she would otherwise
receive. (§ 667, subd. (e)(1).) Nonetheless, the trial court has the authority to strike in
the furtherance of justice, a prior felony conviction under the Three Strikes law. (People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) Defendant
invited the trial court to strike his prior felony “strike” conviction pursuant to section
1385.
              Section 1385 provides in pertinent part: “The judge or magistrate may,
either of his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.” (§1385, subd. (a).) As used in
section 1385, furtherance of justice “‘“requires consideration both of the constitutional
rights of the defendant, and the interests of society represented by the People, in
determining whether there should be a dismissal. [Citations.]” [Citations.] At the very
least, the reason for dismissal must be “that which would motivate a reasonable judge.”
[Citations.]’ [Citation.] ‘Courts have recognized that society, represented by the People,
has a legitimate interest in “the fair prosecution of crimes properly alleged.” [Citation.]
“‘[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the
defendant is an abuse of discretion.’ [Citations.]”’ [Citation.]” (Romero, supra, 13
Cal.4th at pp. 530-531.)




                                               5
              Defendant claims the court erred in denying his invitation.2 We review a
trial court’s decision denying Romero relief for an abuse of discretion. (People v.
Clancey (2013) 56 Cal.4th 562, 581.) It is the defendant’s burden to demonstrate the
sentencing decision was irrational or arbitrary. (People v. Philpot (2004) 122
Cal.App.4th 893, 904.)
              In support of defendant’s invitation for the court to strike his prior “strike”
conviction in 1998 for active participation in a criminal street gang (§ 186.22, subd. (a)),
defense counsel argued the punishment for the prior conviction should be stricken
because the conviction was “remote in time” and because the conviction was unrelated to
the present offenses, given the jury acquitted him of active gang participation charges and
found the gang enhancements not true.
              In deciding whether to strike a prior felony conviction under Romero, the
Supreme Court has stated trial courts should “consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) In light of the application of
these factors to the present case, we find the court did not abuse its discretion.




              2  “Although section 1385 provides that a dismissal ‘in furtherance of
justice’ may be ordered either on the motion of the district attorney, or on the court’s
motion, a defendant may invite the court to exercise its power by an application to strike
a count or allegation of an accusatory pleading, and the court must consider evidence
offered by the defendant in support of his assertion that the dismissal would be in
furtherance of justice. [Citations.]” (Rockwell v. Superior Court (1976) 18 Cal.3d 420,
441-442.)


                                              6
              According to the probation report, defendant suffered misdemeanor
convictions for disturbing the peace, false identification to a police officer, disobeying a
court order, vandalism, assault, battery, possession of a hypodermic needle/syringe,
possession of a controlled substance, and trespassing (two convictions) between 1988 and
1995. Additionally, in 1995 he was convicted of a felony violation of possessing a
controlled substance. He was placed on probation. He violated probation, was placed
back on probation, violated probation again, and was sentenced to state prison for two
years. After his release, he twice violated the terms of his parole.
              In 1998, defendant was convicted of unlawfully taking an automobile in
violation of Vehicle Code section 10851, subdivision (a), and with actively participating
in a criminal street gang. He was sentenced to 16 months in state prison. He violated his
parole four times after his initial release from prison on that case. In 2001, he was
convicted of possessing a controlled substance for sale and was sentenced to state prison
for three years. While he was in prison, he was disciplined for taking part in a riot. He
violated his subsequent parole twice. Then in 2006, defendant was convicted of
possessing a controlled substance, was sentenced to state prison for 32 months, and
violated parole again after being released. According to the probation report, defendant
was on parole at the time of the commission of the present offenses. Although
defendant’s prior “strike” conviction occurred in 1998, he has not been crime-free since
then. In fact, he continuously committed other felonies after that conviction. Even the
present offenses were committed while he was on parole. Indeed, defendant was
sentenced to state prison three times and violated his parole after each commitment.
Moreover, defendant’s conviction in the present matter for aggravated assault in which he
inflicted great bodily injury, is a serious and violent felony (§ 667, subd. (c)(8) [violent
felony]; 1192.7, subd. (c)(8) [serious felony]) and will now be defendant’s second
“strike.” Furthermore, even after committing a serious and violent offense in this matter,



                                              7
he was released from custody and committed yet another felony. Notwithstanding the
many favorable letters submitted on his behalf, we cannot consider defendant as being
“outside the spirit of the Three Strikes law.” (People v. Williams, supra, 17 Cal.4th at p.
163.)
              We also reject defendant’s contention that the court acted contrary to the
jury’s findings. The jury acquitted defendant of the gang charges and enhancements.
The court did not express findings contrary to the jury’s verdict and findings. Defense
counsel argued the jury’s acquittal on the active participation in a criminal street gang
charges and the not true finding on a gang enhancement meant the defendant is
unequivocally no longer a street gang participant. The jury’s verdict and findings only
established the jury found the prosecution failed to prove the truth of the gang charges
and enhancement beyond a reasonable doubt. “A not guilty verdict is not the equivalent
of finding the defendant innocent. [Citation.]” (People v. Lloyd (2015) 236 Cal.App.4th
49, 62.) The court pointed out that defense counsel stated but two reasons for striking the
prior conviction: because counsel believed the jury’s verdict “means [defendant is] not
involved in the gang anymore” and because the prior serious felony conviction occurred
in 1998.
              In denying defendant’s invitation to strike the prior “strike” conviction, the
court referred to the probation report wherein defendant stated his frustration with the
constant attention of law enforcement, and his decision to stay in Midway City, where
gang members don’t “mess[] with him or his family.” The court stated he obviously has
the respect of members of the gang. The court’s decision not to strike defendant’s prior
conviction does not mean defendant suffered an adverse sentencing consequence contrary
to the jury’s verdicts and findings.




                                             8
              Additionally, defendant has refused to accept responsibility for assaulting
the victim and inflicting great bodily injury. Instead, he blames the police officers who
arrested him for possessing a firearm after having previously been convicted of a felony.
He reasons that had he not been arrested on the gun charge, he would not have been in
jail to commit the aggravated assault. He also denied knowing about the Ecstacy, stating
it was in the contents of a storage unit he purchased and he had not yet inventoried his
purchase before he was arrested on the drug charges.


B. The Court did Not Err in Imposing the Crime-Bail-Crime Enhancement.
              For purposes of section 12022.1, a “primary offense” is a felony upon
which the defendant has been released from custody on bail or his own recognizance
prior to a final judgment. (§ 12022.1, subd. (a)(1).) A “[s]econdary offense” is a felony
offense committed by the defendant while out of custody on the “primary offense.” (§
12022.1, subd. (a)(2).) If after release on a primary offense the defendant is thereafter
convicted of having committed the secondary offense, the defendant is subject a two-year
enhancement if the enhancement was pled and proven. (§ 12022.1, subds. (b), (c).)
              Defendant argues the court erred in imposing the crime-bail-crime
enhancement. He claims a court cannot impose a sentence on an enhancement attached
to an underlying offense when the court has stayed the sentence on the underlying
offense. He cites People v. Guilford (1984) 151 Cal.App.3d 406, as his authority for his
position.
              As we shall explain, People v. Guilford, supra, 151 Cal.App.3d 406, is
inapposite. In that case, the defendant was charged with two counts of attempted robbery
and one count of murder. (Id. at p. 408.) The victim of the murder was also named as the
victim of one of the attempted robbery charges (count one). The information alleged the
defendant personally used a deadly weapon and inflicted great bodily injury during the



                                             9
attempted robbery of the murder victim. (Ibid.) The jury found defendant guilty on all
three counts and the court imposed a 25 years to life sentence on the murder charge. (Id.
at pp. 410-411.) The court then imposed an upper term sentence (three years) on the
attempted robbery charge involving the murder victim, three years on the great bodily
injury enhancement, and an additional year for the weapon enhancement. The court
stayed pursuant to section 654 the sentence on that count and the term imposed for
infliction of great bodily injury, because the same underlying facts were the basis for the
defendant’s conviction for first degree murder. The trial court did not, however, stay the
one-year term for the weapon enhancement attached to that attempted robbery conviction.
(Id. at p. 411.) The defendant contended the trial court erred by not staying the weapon
enhancement attached to the attempted robbery sentence stayed by the court. (Ibid.)
              The Guilford court agreed. “[S]ince an enhancement for use of a deadly
weapon in connection with commission or attempted commission of a felony is imposed
in addition and consecutive to the prescribed punishment for the felony or attempted
felony, it follows that time to be served for the enhancement can only be served if and
after time is served on the base term.” (People v. Guilford, supra, 151 Cal.App.3d at p.
412.) The present case, however, presents a distinction with a legal difference.
              “‘[T]here are at least two types of sentence enhancements: (1) those which
go to the nature of the offender; and (2) those which go to the nature of the offense.’
[Citation.] The first category typically enhances the sentence due ‘to the defendant’s
status as a repeat offender.’ [Citation.] ‘The second category of enhancements, which
are exemplified by those authorized under sections 12022.5 and 12022.7, arise from the
circumstances of the crime and typically focus on what the defendant did when the
current offense was committed.’ [Citation.]” (People v. Ahmed (2011) 53 Cal.4th 156,
161.) A section 12022.1 enhancement does not go to the nature of a charged offense, but




                                             10
rather is based on the defendant’s on-bail status at the time the secondary offense was
committed. (See People v. Meloney (2003) 30 Cal.4th 1145, 1159.)
                The weapon enhancement stayed in People v. Guilford, supra, 151
Cal.App.3d 406, was meant to punish a defendant for his action (use of a weapon) in
committing an underlying felony. A crime-bail-crime enhancement does not punish a
defendant for his or her conduct during the commission of an underlying felony. Rather,
when applicable, and like an enhancement for a prior conviction (People v. Sasser (2015)
61 Cal.4th 1, 15), it punishes a defendant for his or her status at the time of the
commission of a secondary offense. (Ibid.) In People v. Guilford, supra, 151
Cal.App.3d 406, the term imposed on the weapon enhancement attached to a count of
attempted robbery was stayed because the sentence on the underlying attempted robbery
conviction was stayed pursuant to section 654. Section 654 required the court to stay the
sentence on the attempted robbery count because the facts underlying that offense were
the same set of facts upon which the defendant’s murder conviction was based. (Id. at p.
411; § 654.)3
                The same section 654 consideration does not apply when an enhancement
is based on the defendant’s status, rather than an act or omission of the defendant
committed during the course of an underlying felony. (See People v. Coronado (1995)
12 Cal.4th 145, 156 [if enhancement is based on an act or omission in the commission of
a crime, section 654 should apply].) Unlike offense-based enhancements that apply to
specific counts and may be imposed in connection with each count to which it applies,
status-based enhancements apply only once in a case, regardless of the number of counts,


                3
                “An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission be punished
under more than one provision. . . .” (§ 654, subd. (a).)



                                              11
and do not attach to particular counts. (People v. Sasser, supra, 61 Cal.4th at p. 15.)
Therefore, the fact that the court permanently stayed the sentence imposed on count six4
does not preclude the court from imposing sentence for the crime-bail-crime
enhancement, notwithstanding the fact that count six was the secondary offense within
the meaning of section 12022.1, subdivision (b).

C. The Court did Not Err in Denying Defendant’s Motion to Strike the Crime-Bail-Crime
Enhancement Pursuant to Section 1385.
              Lastly, defendant contends the trial court erred in failing to strike the
section 12022.1 crime-bail-crime enhancement. (See People v. Melony, supra, 30
Cal.4th at p. 1163 [trial court has authority under section 1385 to strike a section 12022.1
enhancement].) He says he filed a request for the trial court to strike the section 12022.1
enhancement and that the court did not rule on the motion, but stated it was obligated to
impose the two-year statutory term. We do not find the argument convincing.
              First, although the opening brief states defendant asked the court to strike
the crime-bail-crime enhancement, defendant does not cite to the record where such a
request was made. “‘[I]t is counsel’s duty to point out portions of the record that support
the position taken on appeal. The appellate court is not required to search the record on
its own seeking error. . . . [A]ny point raised that lacks citation may, in this court’s
discretion, be deemed waived. [Citation.]’ [Citations.]” (Kinney v. Overton (2007) 153
Cal.App.4th 482, 497.) Second, defendant did file a motion seeking vacation of the true
finding on the crime-bail-crime enhancement and dismissal of the enhancement,
presumably based on insufficient evidence, but that issue has not been raised on appeal.
That motion did not, however, refer to section 1385.

              4 The record does not indicate the reason the court permanently stayed the
sentence on count six, but given the fact count six is not connected in time or place with
defendant’s conviction for the aggravated assault, it is safe to assume the court did not
stay the sentence on count six pursuant to section 654.


                                              12
              Additionally, defendant states the trial court “never clearly declined to
exercise its discretion” to strike the crime-bail-crime for sentencing purposes. If there
had been a request for the court to strike the enhancement—and, again, we have not been
cited to the record where such any such request was made—then defendant did not press
for a ruling and has forfeited the issue. (Cf. People v. Cunningham (2001) 25 Cal.4th
926, 984 [failure to press for ruling on motion to sever forfeited issue for appeal].)
“‘“[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling
. . . the party who objected must make some effort to have the court actually rule. If the
point is not pressed and is forgotten, [the party] may be deemed to have waived or
abandoned it, just as if he had failed to make the objection in the first place.”’
[Citations.]” (People v. Braxton (2004) 34 Cal.4th 798, 813.) We conclude the issue has
not been preserved for appeal.
              Defendant further argues the evidence suggests “the sentencing court would
have struck the enhancement if it believed it had the authority.” To the contrary, the
record does not support such a conclusion. Not only did defendant fail to cite what
evidence supports his position, we can find nothing in the record to indicate the court
would have struck the enhancement. The court knew it had the authority to strike
defendant’s felony conviction under the Three Strikes law. Still it denied defendant’s
invitation, resulting in doubling the punishment on the aggravated assault charge.
Moreover, the court selected the midterm (doubled) on the aggravated assault conviction
as the base term, rather than sentencing defendant to the low term doubled. Thus, the
court had ample opportunity to sentence defendant to two years less than it did, but it
chose not to do so. Although we do not conclude the court was unaware of its
jurisdiction to strike the crime-bail-crime enhancement, even were we to assume it was,
we do not find the court would have struck the two-year enhancement had the court been
aware it could.



                                              13
                                        III
                                  DISPOSITION
            The judgment is affirmed.




                                              MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



FYBEL, J.




                                        14
