P. v. Ponce
Filed 6/30/06 P. v. Ponce CA4/3
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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. JULIO ALONZO PONCE, Defendant and Appellant. | G035009 (Super. Ct. No. 02CF2243) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed as modified.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobek and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
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Introduction
A jury convicted Julio Alonzo Ponce of one count of first degree murder (Pen. Code, § 187, subd. (a) (count 1); all further code references are to the Penal Code) and one count of street terrorism (§ 286.22, subd. (a) (count 2)). As to count 1, the jury found true the special circumstance allegation the murder was committed for a criminal street gang purpose within the meaning of section 190.2, subdivision (a)(22), and found true a conduct enhancement allegation Ponce committed the murder for the benefit of, at the direction of, and in association with, a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). Also as to count 1, the jury found true the allegation Ponce personally discharged a firearm, causing death, within the meaning of section 12022.53, subdivision (d).
The trial court sentenced Ponce to life without possibility of parole for the special circumstance murder conviction with a 25-years-to-life consecutive term for the gun discharge enhancement. The court imposed a two-year concurrent term for the street terrorism conviction under count 2, struck the section 186.22, subdivision (b)(1)(A) gang enhancement, ordered restitution, and suspended a parole revocation fine.
Ponce challenges his sentence on three grounds: (1) the firearm enhancement pursuant to section 12022.53, subdivision (d), must be stricken as violating subdivision (j) of that section, because the base term of imprisonment is longer than the enhancement; (2) the two year sentence imposed on count 2 (street terrorism) must be stayed pursuant to section 654 because the acts forming the basis for that count are the same acts forming the basis for the section 190.2, subdivision (a)(22) special circumstance alleged under count 1; and (3) the restitution fine and parole revocation fine must be stricken because the trial court did not impose those fines at the sentencing hearing.
We conclude the trial court did not err by imposing a firearm enhancement under count 1 pursuant to section 12022.53, subdivision (d), because the phrase â€
