P. v. Flores

Filed 7/23/07 P. v. Flores CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

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

Charles D. Sheldon, Judge. Affirmed and remanded with directions.

Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________________

Lawrence Flores (Flores) appeals the judgment entered following a jury trial which resulted in his conviction of attempted, willful, deliberate, premeditated murder (Pen. Code, 664/187, subd. (a)),^[1] during which he personally used and discharged a firearm ( 12022.53, subds. (b) & (c)) and a principal used and discharged a firearm causing great bodily injury ( 12022.53, subds. (b), (c), (d) & (e)(1)); assault with a firearm ( 245, subd. (a)(2); and mayhem ( 203), during which he personally used and discharged a firearm ( 12022.53, subds. (b) & (c)) and a principal used and discharged a firearm causing great bodily injury ( 12022.53, subds. (c), (d) &(e)(1)); and the jurys findings each of the crimes had been committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)). The trial court sentenced Flores to life in prison with the possibility of parole.

We remand the matter to the trial court to correct the abstract of judgment to properly reflect the sentence imposed and direct the court to send a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that at approximately 9:00 p.m. on January 21, 2005, 13-year-old Andre D. was walking home from basketball practice when he saw Flores, who he had seen a number of times around the neighborhood, and another young man named Avila. Both Flores and Avila are members of the Eastside Longos, a criminal street gang.

Flores approached Andre D. and asked him if he banged. When Andre D. replied he did not, Flores replied, Okay, then turned away. Floress companion, Avila, told Flores, Come on, [Flores], lets go. However, instead of leaving the area, Flores, who was approximately three feet from Andre D., turned back around and, with his arm outstretched, aimed a gun at Andre D.s chest. Flores pulled the trigger, but the gun did not fire.

Andre D. turned and ran into the street. As he was running, Andre D. heard a gunshot, then felt something hit him in the head. He blacked out and fell to the ground. When he was finally able to get up, Andre D. felt a hole in his head near his right temple and blood dripping down from it. As a result of the shooting, Andre D.s left eye was destroyed and replaced with a prosthetic. He also suffered substantial impairment of vision in his right eye.

Police officers arrived a short time later and detained Flores and Avila in an alley near where the shooting had occurred. The gun used to shoot Andre D. was recovered from the alley near where Avila was apprehended.

After he was taken into custody, Flores waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and spoke with police officers. At first Flores denied taking part in the shooting. However, he later changed his story and explained that he had been participating in a gang initiation during which he and Avila had set out to specifically kill a male black Insane Crip gang member. While walking around the area looking for an Insane Crip gang member to shoot, Flores and Avila saw Andre D. After he and Andre D. had a brief conversation, Flores shot Andre D. When he finished shooting at Andre D., Flores handed the gun to Avila, who fired two additional shots.

2. Sentencing proceedings.

For Floress conviction of attempted, willful, deliberate, premeditated murder as alleged in count one, the trial court imposed an indeterminate sentence of life in prison, with a parole eligibility date after 15 years. For a principals use and discharge of a firearm causing great bodily injury pursuant to section 12022.53, subdivisions (d) and (e)(1), the trial court imposed a consecutive term of 25 years to life in prison. The trial court stayed imposition of sentence pursuant to section 654 for Floress conviction of assault with a firearm as alleged in count two.^[2] For Floress conviction of mayhem, as alleged in count three, the trial court imposed a term of four years in prison, the term to run concurrently to the life terms.

CONTENTION

Flores contends the abstract of judgment must be corrected to properly reflect the sentence imposed.

DISCUSSION

The abstract of judgment indicates Flores was sentenced to the upper term of four years in prison for a conviction of assault with a firearm in violation of section 242(A)(2). Flores asserts, and the People agree, this is incorrect. Flores was not charged with, convicted of or sentenced for a violation of section 242, which prohibits the crime of battery.^[3] This clerical error must be corrected to correspond to the trial courts oral pronouncement of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185-188) which stayed, pursuant to section 654, imposition of sentence for Floress conviction of assault with a firearm in violation of section 245, subdivision (a)(2) and imposed a concurrent middle term of four years in prison for his conviction of mayhem in violation of section 203.

DISPOSITION

The matter is remanded to the trial court to prepare a corrected abstract of judgment reflecting the sentence imposed: a stay of imposition of sentence pursuant to

section 654 for Floress conviction of assault with a firearm in violation of section 245, subdivision (a)(2) as alleged in count two of the information and imposition of a concurrent middle term of four years in prison for his conviction of mayhem in violation

of section 203 as alleged in count three of the information. The trial court is further directed to send a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Section 654 provides in relevant part: (a) 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.

^[3] We note section 242 does not have a subdivision (A)(2).