P. v. Barajas
Filed 5/12/06 P. v. Barajas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO BARAJAS, Defendant and Appellant. | F047996 (Super. Ct. No. 1067548) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl W. Johnson, Judge.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant, Antonio Barajas, of attempted premeditated murder (count I/Penal Code, §§ 664/187),[1] assault with a deadly weapon (count II/§ 245, subd. (a)(2)), and discharging a firearm at an occupied motor vehicle (count III/§ 246). The jury also found true a gang enhancement in each count (§ 186.22, subd. (b)(1)), allegations in counts I and III that he caused great bodily injury by intentionally discharging a firearm at the victim (§ 12022.53, subd. (d)), allegations in counts II and III that Barajas inflicted great bodily injury (§ 12022.7, subd. (a)), and allegations in count III that Barajas personally used a firearm (§ 12022.5, subd. (a)).
On April 27, 2005, the court sentenced Barajas to life in prison with the possibility of parole on count I, a consecutive 25-years-to-life term on the arming enhancement in that count, and a consecutive 15-years-to-life term for the gang enhancement in that count. The court also imposed a concurrent, aggregate term of 20 years on count II (the middle term of 3 years on Barajas's assault conviction, a 4-year arming enhancement, a 3-year great bodily injury enhancement, and a 10-year gang enhancement) and a concurrent, aggregate term of 43-years-to-life on count III (the middle term of 5 years on the substantive offense, a 3-year great bodily injury enhancement, a 10-year gang enhancement, and a term of 25 years to life on the arming enhancement in that count). On appeal, Barajas contends the court erred by not staying the terms it imposed on counts II and III. We agree and will modify the judgment accordingly. In all other respects we will affirm.
FACTS
On April 7, 2003, as Rogelio Alvarado sat in a parked car, Barajas and three other members of a Modesto gang approached him, yelled out a gang slogan, and fired several shots. One bullet struck Alvarado in the mouth causing him to lose several teeth and part of his gum, and lodged itself in his neck. Barajas and his fellow gang members were arrested at gunpoint a short time after as they ran away from the scene.
DISCUSSION
Barajas contends that Penal Code section 654 barred the court from imposing concurrent terms on counts II and III. Respondent concedes and we agree.
Penal Code section 654, subdivision (a) provides in pertinent part, â€
