In re Morales
Filed 7/26/06 In re Morales CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
| In re CESAR MORALES, on Habeas Corpus. | B189198 (Los Angeles County Super. Ct. No. BA179633) |
PETITION for writ of habeas corpus. Granted in part; denied in part.
Robert Franklin Howell for Petitioner.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General for Respondent.
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A jury convicted petitioner of one count of first degree murder (Pen. Code,[1] § 187, subd. (a)) and one count of attempted murder (§§ 664, 187, subd. (a)). As to both counts, the jury found true gang enhancement allegations (§ 186.22, subd. (b)(1)); that a principal used a firearm in the commission of the offenses (former § 12022.5, subd. (a)(1), § 12022.53, subds. (b) & (e)(1)); that a principal personally and intentionally discharged a firearm in the commission of the offenses (§ 12022.53, subds. (c) & (e)(1)); and that a principal personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). The jury found not true that petitioner personally used a firearm as to both counts.
On June 11, 2001, the trial court sentenced petitioner, on count 1, to 25 years to life plus 20 years under sections 186.22, subdivision (b)(1), and 12022.53, subdivisions (c) and (e)(1). On count 2, the trial court sentenced petitioner to a consecutive 15 years to life under former section 186.22, subdivision (b)(4), plus 20 years under sections 186.22, subdivision (b)(1), and 12022.53, subdivisions (c) and (e)(1).
The trial court erred in sentencing petitioner to 15 years to life on count 2. Where, as here, the defendant was not found to have personally used or discharged a firearm, an â€
