P. v. Guadarrama

























Filed 5/9/13 P. v. Guadarrama 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. PROSPERO RAMIREZ GUADARRAMA, Defendant and Appellant.

G046312 (Super. Ct. No. 08ZF0020) O P I N I O N

Appeal from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Richard F. Toohey, Judge. Affirmed in part, reversed in part, and
remanded for resentencing.

Gordon
S. Brownell, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant
Prospero Ramirez Guadarrama was convicted of multiple counts, including two
special circumstances murders, relating to a gang shooting. During sentencing, the court indicated that
it had no discretion except to sentence defendant to life without the
possibility of parole on each murder count.
Defendant argues that under Penal Code section 190.5, subdivision (b),href="#_ftn1" name="_ftnref1" title="">[1]
the court had the discretion to sentence him to 25 years to life instead. Because the court’s erroneous belief led to
its sentencing decision, he argues he should be resentenced. The Attorney General agrees, as do we.

Defendant
also argues that his sentence on one count of href="http://www.fearnotlaw.com/">street terrorism

(§ 186.22, subd. (a)) must be stayed
pursuant to section 654. Again the
Attorney General concedes the point, and we concur. We therefore remand the matter for
resentencing.

I

FACTS

Due to the
limited issues on appeal, we need not discuss the facts at any length. Defendant and his accomplices were members of
the Walnut
Street
gang. They were involved in the shooting
of three unarmed boys, two age 14 and one age 16, in a single incident
targeting rival gang members. Defendant,
who was not a shooter, was 16 years old at the time.

In count
one, defendant was convicted of the first
degree murder of Angel Secundino (§ 187, subd. (a)). The jury also returned true findings on the
special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and
gang-related murder (§190.2, subd. (a)(22)).
Two enhancement allegations were also found true, first, that the murder
was committed for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)), and second, that defendant
vicariously discharged a firearm, proximately causing great bodily injury or
death (§ 12022.53, subds. (d), (e)(1)).

In count
two, defendant was convicted of the first degree murder of Gabriel Perez (§
187, subd. (a)), and the same special circumstances and enhancements were found
true as were found in count one. (§
190.2, subd. (a)(3), (a)(22); §
186.22, subd. (b)(1), § 12022.53,
subds. (d), (e)(1).)

In count
three, defendant was convicted of the premeditated attempted murder of Fernando
Garcia (§ 664, subd. (a), § 187, subd. (a)).
The same enhancements found true on counts one and two were also found
true here. (§ 186.22, subd.
(b)(1), § 12022.53, subds. (d),
(e)(1).)

In count
four, defendant was convicted of street terrorism. (§ 186.22, subd. (a).)

At the
sentencing hearing, defense counsel stated:
“I understand the court has a certain amount of discretion, and I would
ask that the court exercise some discretion and provide a sentence for
[defendant] that is commensurate with his position being a non-shooter in this
incident at the age of 16.” The court
replied: “I don’t see the court has a
whole lot of discretion. The only
discretion the court has is whether there’s concurrent or consecutive
sentencing in relation to three counts.”


The court
then sentenced defendant, as to count one, to life without the possibility of
parole for the special circumstances murder plus a consecutive term 25 years to
life on the firearm enhancement. On
count two, the court imposed the same sentence and related enhancement, to run
concurrently with count one. On count
three, the court sentenced defendant to life with the possibility of parole
plus a consecutive term of 25 years to life for the firearm enhancement, to run
concurrently with count one. On count
four, the court imposed a sentence of two years to run concurrently with count
one.

Defendant
now appeals.

II

DISCUSSION

>Sentence
on Counts One and Two

Defendant
argues he is entitled to resentencing on counts one and two because the court
was not aware it had the discretion to impose a lesser sentence of 25 years to
life, rather than life without the possibility of parole, on each of the murder
counts. The Attorney General agrees, and
we concur, that the record reflects the court may have been unaware of its
discretion. Therefore, resentencing is
appropriate.

Section
190.5 is the relevant provision here. “The
penalty for a defendant found guilty of murder in the first degree, in any case
in which one or more special circumstances enumerated in Section 190.2 or
190.25 has been found to be true under Section 190.4, who was 16 years of age
or older and under the age of 18 years at the time of the commission of the
crime, shall be confinement in the state prison for life without the
possibility of parole or, at the
discretion of the court, 25 years to life.”
(§ 190.5, subd. (b), italics added.)

Defendant
was indeed convicted, in counts one and two, of first degree murder, and as to
each count, the jury found two special circumstances true, multiple murder (§ 190.2, subd. (a)(3)) and
gang-related murder (§190.2, subd. (a)(22)).

“Generally, when the record shows that the trial court proceeded with
sentencing on the erroneous assumption it lacked discretion, remand is
necessary so that the trial court may have the opportunity to exercise its
sentencing discretion at a new sentencing hearing. [Citations.]
Defendants are entitled to ‘sentencing decisions made in the exercise of
the “informed discretion” of the sentencing court,’ and a court that is unaware
of its discretionary authority cannot exercise its informed discretion. [Citation.]”
(People v. Brown (2007) 147
Cal.App.4th 1213, 1228.)

Here,
there are such indications in the record.
The probation report stated that life without the possibility of parole
was mandated. The prosecutor’s
sentencing brief did not mention section 190.5, but instead indicated only that
the maximum sentence for counts one and two was life without the possibility of
parole. Defense counsel, according to
the record, submitted no sentencing brief at all, and did not argue the court
had discretion under section 190.5 to sentence defendant to 25 years to life
instead.

Rather,
defense counsel asked the court generally to exercise its discretion, due to
defendant’s age and his status as a non-shooter in the incident. The court’s statement strongly suggests it
did not believe it had such discretion:
“I don’t see the court has a whole lot of discretion. The only discretion the court has is whether
there’s concurrent or consecutive sentencing in relation to three counts.”

This
statement indicates to us that the court “proceeded with sentencing on the
erroneous assumption it lacked discretion . . . .” (People
v. Brown, supra, 147 Cal.App.4th
at p. 1228.) Thus, defendant is entitled
to resentencing on counts one and two.



Sentence on Count Four

Defendant
also argues that his sentence on count four, the street terrorism count (§
186.22, subd. (a)) must be stayed pursuant to section 654. The Attorney General concurs, as do
we.

Section
654, subdivision (a) states: “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.” Section
654 therefore bars multiple punishment when a defendant is convicted of two or
more offenses that are incident to one objective. (Neal
v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993)
5 Cal.4th 1203 [reaffirming Neal].)

“[Section
186.22, subd. (a)] has three elements:
(1) ‘[a]ctive participation in a criminal street gang, in the sense of
participation that is more than nominal or passive,’ (2) ‘“knowledge that [the
gang’s] members engage in or have engaged in a pattern of criminal gang
activity,”’ and (3) ‘the person “willfully promotes, furthers, or assists in
any felonious criminal conduct by members of that gang.” [Citation.]’
[Citation.]” (>People v. Mesa (2012) 54 Cal.4th 191,
197 (Mesa).)

In
Mesa (which was decided after
sentencing in this case occurred) the California Supreme Court held that
section 654 precludes punishment for street terrorism (§ 186.22, subd. (a))
when a defendant is independently punished for the offense that satisfies the
third element of the gang crime. (>Mesa,
supra, 54 Cal.4th at pp. 197-198.)
As the Attorney General concedes, the only evidence of felonious conduct
presented in this case was the underlying charged murders and attempted
murder. Thus, under section 654,
defendant’s sentence on count four must be stayed rather than run concurrently.

III

DISPOSITION

The
convictions are affirmed, and the matter is remanded for resentencing in a
manner consistent with this opinion.







MOORE,
J.



WE CONCUR:







RYLAARSDAM, ACTING P. J.







BEDSWORTH, J.