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Name: People v. Ybarra et al.
Case #: F047855
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/12/2008

Penal Code section 868.5, entitling a prosecution witness to a support person during his or her testimony at trial, does not violate due process. In this murder and attempted murder case, the victims of the attempted murder charges, and the spouse of the murder victim, each had a support person close by and within the jury’s sight during their testimony. Appellants argued this was a violation of due process. They likened the support person’s role to allowing spectators to wear buttons of victim, shackling a defendant, or making him wear prison garbs. The court found the analogy to these practices unpersuasive. Nothing about a support person sitting quietly near a witness is particularly distracting or likely to arouse intense emotion among jurors for the witness or against a defendant. A criminal street gang crime is not a lesser included offense of a first degree murder committed with a street gang special circumstance allegation. Enhancement allegations are not considered in determining lesser included offenses. The only test for lesser included offenses is the statutory elements test. And the elements of the criminal street gang crime and the criminal street gang enhancement differ (i.e., Pen. Code, § 186.22, subd. (a) requires proof of active participation). So, a person can commit the crime of first degree murder with a criminal street gang enhancement without necessarily committing the criminal street gang crime.  Penal Code, section 190.5, subdivision (b), which gives the court discretion to impose a 25-year to life sentence, instead of life without possibility of parole (LWOP) for a youthful offender who commits special circumstance first degree murder, carries a preference for the LWOP sentence. But, despite that preference, the trial court still must exercise its discretion when imposing sentence on qualifying offenders. The Court of Appeal agreed the record showed a lack of awareness by the trial court of its discretion to sentence appellant to the lesser sentence of 25 to life. The probation report listed the only possible sentence as LWOP. The arguments of counsel at sentencing and the comments by the court, none of which mentioned appellant’s age, also suggested lack of awareness on everyone’s part. Accordingly, remand for resentencing is imperative. The trial court committed Cunningham error when imposing aggravated terms. The court sentenced appellants to the upper terms on street-gang offenses and on personal firearm-use enhancements. To justify the former, the court found the victims were particularly vulnerable, that there was planning and sophistication, and a high degree of cruelty and callousness. To justify the latter, the judge relied on these same factors as well as the fact that the firearm was discharged. The jury had rendered true finding on the personal-use enhancements as to both appellants, and a true finding of intentional and personal discharge as to appellant Cernas only. So, three of the factors (victim vulnerability, planning and sophistication, and high cruelty and callousness) were facts found true by the trial court under a preponderance of evidence standard, and not facts found true beyond a reasonable doubt by the jury. The appellate court reversed and remanded with directions to hold a contested resentencing hearing at which time the trial court could choose the middle or upper terms. The Court of Appeal rejected appellant’s argument regarding imposition of consecutive terms because Cunningham is silent on the consecutive-term issue and the California Supreme Court has since held consecutive sentences do not implicate the Sixth Amendment.