P. v. Garcia
Filed 6/18/13 P. v. Garcia CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
RAMON GARCIA,
Defendant and Appellant.
B240815
(Los Angeles
County
Super. Ct.
No. BA355199)
APPEAL from
a judgment of the
County Superior Court, Drew E. Edwards, Judge. Affirmed as modified.
Heather J.
Manolakas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
>
Ramon Garcia
was convicted by a jury on two counts of attempted willful, deliberate and
premeditated murder with true findings on the special allegations the crimes
had been committed for the benefit of a criminal
street gang and a principal had used and discharged a firearm in committing
the offenses proximately causing great bodily injury. On appeal Garcia argues only that, in
sentencing him to an indeterminate aggregate state prison term of 35 years to
life, the trial court violated Penal Code section 12022.53, subdivision (e)(2),
firearm-use enhancement and a 10-year criminal street gang enhancement because
there was no finding he had personally discharged a firearm in the commission
of the offenses. The Attorney General
concedes the trial court erred, and we agree.
DISCUSSION
The firearm-use enhancements
specified in section 12022.53 generally apply only to the personal use or
discharge of a firearm in the commission of a statutorily specified
offense. Section 12022.53, subdivision
(e)(1), creates an exception to this personal use requirement when the offense
is committed to benefit a criminal street gang within the meaning of section
186.22 even if the defendant did not personally use or discharge a firearm but
another principal did.
name="_ftnref2" title="">[2]
Section 12022.53, subdivision
(e)(2), however, moderates the effect of subdivision (e)(1).
a firearm in the commission of a specified offense for the benefit of a
criminal street gang is subject to both the punishment provided in section
186.22 and the increased punishment provided in section 12022.53, but, when
only another principal in the offense has used or discharged the firearm, the
non-using defendant is not subject to “[a]n enhancement for participation in a
criminal street gang . . . in addition to an enhancement imposed
pursuant to†section 12022.53. (See
583, 591 [only those offenders who personally used or discharged a firearm in
committing a gang-related offense specified in § 12022.53 are subject to
both the enhancement provisions of that section and the gang-related sentence
increases of § 186.22].)
Here, the jury convicted Garcia of
the attempted willful, deliberate and premeditated murder of German Preciado
Llamas and Armando Llamas (§§ 187, subd. (a), 664, subd. (a))—an
offense included within those enumerated in section 12022.53, subdivision
(a). (See § 12022.53, subd. (a)(17),
(18).) The jury also found true as to
both counts the allegations the offenses were committed for the benefit of, at
the direction of or in association with a criminal street gang, with the
specific intent to promote, further, or assist in criminal conduct by gang
members, within the meaning of section 186.22, subdivision (b), and
further found true as to both counts the allegations a principal had personally
used and discharged a firearm causing great bodily injury within the meaning of
section 12022.53, subdivisions (b), (c) and (d). The jury was not asked to find, and there
was, therefore, no finding, that Garcia himself had personally used and
discharged the firearm during the attempted murders.
Garcia was sentenced to concurrent
35-years-to-life terms on the two counts:
life with the possibility of parole for attempted willful, deliberate
and premeditated murder, plus 25-years-to-life for the firearm enhancement
pursuant to section 120222.53, subdivision (d), plus 10 years for the criminal
street gang enhancement pursuant to section 186.22, subdivision (b)(1)(C).
enhancement was properly included in Garcia’s sentence on both counts under
section 12022.53, subdivision (e)(1), pursuant to section 12022.53, subdivision
(e)(2), and People v. Brookfield, supra,
47 Cal.4th 583, it was error for the trial court to additionally impose any
criminal street gang enhancement without a finding Garcia had personally
discharged the firearm in committing the offenses. Accordingly, we strike that enhancement from
the sentence on each count.
DISPOSITION
The judgment is modified to strike
the consecutive 10-year enhancement imposed on counts 1 and 2 pursuant to
section 186.22, subdivision (b)(1)(C).
In all other respects the judgment is affirmed. The superior court is directed to prepare a corrected
abstract of judgment and to forward it to the
Rehabilitation.
PERLUSS,
P. J.
We concur:
WOODS,
J.
ZELON,
J.
references are to the Penal Code.
12022.53, subdivision (e)(1), states, “The enhancements provided in this
section [concerning use or discharge of a firearm] shall apply to any person
who is a principal in the commission of an offense if both of the following are
pled and proved: [¶] (A) The
person violated subdivision (b) of Section 186.22. [¶]
(B) Any principal in the offense
committed any act specified in subdivision (b), (c), or (d).â€
