P. v. Ayala

Filed 5/15/06 P. v. Ayala CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Charles E. Horan, Judge. Affirmed as modified.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Manuel Ayala appeals from the judgment entered after a jury found him guilty of willful, deliberate and premeditated attempted murder.[1] He contends the trial court imposed an unauthorized sentence. We modify the abstract of judgment to strike, rather than stay, the great bodily injury enhancement under Penal Code section 12022.7 and as modified affirm the judgment.[2]

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Ayala was charged in count 1 with the willful, deliberate and premeditated attempted murder of Cynthia Sanchez (§§ 664, subd. (a), 187, subd. (a)); in count 2 with assault with a firearm against Cynthia Sanchez (§ 245, subd. (a)(2)); in count 3 with conspiracy to commit murder (§ 182, subd. (a)(1), 187, subd. (a), count 3); and in count 4 with conspiracy to commit assault with a deadly weapon (§§ 182, subd. (a)(1), 245, subd. (a)(1), count 4). The information specially alleged: as to all counts, that Ayala personally inflicted great bodily injury (§ 12022.7, subd. (a)); as to counts 1 and 3, the attempted murder and conspiracy to commit murder, that Ayala personally used and personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)); and as to counts 2 and 4, assault with a firearm and conspiracy to commit assault with a deadly weapon, that Ayala personally used a firearm (§ 12022.5, subd. (a)).[3]

2. Summary of the Trial Evidence

Jessica Ceniceros enlisted Jose Aguilar's help in having Cynthia Sanchez killed for sleeping with Ceniceros's boyfriend, Eddie Ramirez. After midnight on August 29, 2004, Aguilar picked up Sanchez and drove her to a motel, where Aguilar received text messages from Ceniceros telling him to leave. Aguilar later left with Sanchez and pulled into a gas station. Aguilar told Sanchez to buy gas and cigarettes. When she left the car, Aguilar drove away. Confused by Aguilar's departure, Sanchez purchased cigarettes and started walking towards a nearby fast food restaurant. A beige Malibu belonging to Ceniceros and Ramirez drove around Sanchez and stopped. Ayala emerged from the car, pointed a shotgun at Sanchez, and shot her in the back as she turned to run. The gas station attendant telephoned police and Ayala fled in the beige Malibu.

Ayala presented an alibi defense. He and two defense witnesses testified that Ayala was at a wedding the night of August 28, 2004 and spent the rest of the night at the home of the two witnesses.

3. The Jury's Verdict and Sentencing

The jury found Ayala guilty of all counts and found true all the special allegations. The trial court sentenced Ayala to an aggregate state prison of 50 years to life as follows: On count 3 for conspiracy to commit murder, 25 years to life in prison, plus 25 years to life for the firearm enhancement for personal use and discharge of a firearm proximately causing great bodily injury under section 12022.53, subdivision (d). The trial court stayed pursuant to 654[4] sentencing on the remaining accompanying great bodily injury and firearm enhancements under section 12022.7, subdivision (a) and section 12022.53, subdivisions (b) and (c).[5]

The court imposed but stayed pursuant to section 654 sentencing on the remaining counts and accompanying enhancements as follows: On count 1, a term of life in prison with the possibility of parole for attempted murder, a 25-year-to-life term for the firearm enhancement under section 12022.53, subdivision (d), and a three-year term for the great bodily injury enhancement under 12022.7, subdivision (a); on count 2, a three-year term for assault with a firearm, a ten-year term for the firearm enhancement under section 12022.5, subdivision (a), and a three-year term for the great bodily injury enhancement under section 12022.7, subdivision (a); on count 4 a three-year term for conspiracy to commit assault with a deadly weapon, a ten-year term for the firearm enhancement under section 12022.5, subdivision (a), and a three-year term for the great bodily injury enhancement under section 12022.7, subdivision (a).

DISCUSSION

As discussed, in count 3 for conspiracy to commit murder, in addition to imposing a 25-year-to-life term for the firearm enhancement under section 12022.53, subdivision (d), the trial court imposed and stayed in count 3 and in count 1, for attempted murder, the firearm and great bodily injury enhancements under section 12022.53, subdivisions (b) and (c) and section 12022.7, subdivision (a). Although he did not object in the trial court, Ayala contends the court imposed an unauthorized sentence by staying, rather than striking, the lesser firearm enhancements and the great bodily injury enhancement.[6] (See People v. Smith (2001) 24 Cal.4th 849, 854 [unauthorized sentence may be corrected at any time whether or not there was an objection in the trial court].)

Ayala's argument was rejected by Division Four of this court in People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), which held that, when, as here, the maximum subdivision (d) enhancement is imposed, lesser firearm enhancements under the specific Penal Code provisions enumerated in subdivision (f) of section 12022.53 should be stricken (Bracamonte, at p. 711), but that any lesser enhancements under section 12022.53 itself must be imposed and stayed (Bracamonte, at p. 713). The Bracamonte court interpreted section 12022.53, subdivision (h), which prohibits the trial court from striking any allegation or finding under section 12022.53 itself, as mandating this disparate treatment for the different firearm enhancements. (Bracamonte, at p. 713.) In light of Bracamonte, the trial court here did not impose an unauthorized sentence on Ayala by staying, rather than striking, the inapplicable section 12022.53 enhancements.[7]

However, as the People concede, the great bodily injury enhancement under section 12022.7, subdivision (a) should have been stricken rather than stayed. Section 12022.53 provides an enhancement under 12022.7 â€