P. v. >Medina>

 

 

 

 

 

 

 

 

 

 

Filed 11/6/13  P. v. Medina CA2/5

> 

> 

> 

> 

> 

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   DAVID MEDINA,               Defendant and Appellant.

B246519         (Los Angeles County       Super. Ct. No. TA120336)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Laura R. Walton, Judge.  Affirmed in part, modified in part, and
remanded with directions.

            Edward H.
Schulman, 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, James William Bilderback II and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

 

 

 

 

 

 

I.  INTRODUCTION

 

            A jury convicted
defendant, David Medina, of first degree
murder (Pen. Code, § 187, subd. (a))href="#_ftn1" name="_ftnref1" title="">^[1] and two counts of attempted willful,
deliberate, premeditated murder (§§ 664, 187, subd. (a).)  The jury further found href="http://www.fearnotlaw.com/">criminal street gang and firearm use
allegations to be true.  (§§186.22, subd.
(b)(1)(C); 12022.53, subds. (b), (c) & (d).)  The trial court found a single prior serious felony
conviction and two prior separate prison term allegations were true.  (§§ 667, subds. (b)-(i); 667.5, subd. (b);
1170.12.)  Defendant was sentenced to 185
years to life in state prison.  We affirm
in part, modify in part, and remand with directions to impose or strike prior
separate prison term enhancements.

 

II.  THE EVIDENCE

A.  The Prosecution Case

1.  The shootings

 

            Defendant
and Jesse Medina are brothers.href="#_ftn2"
name="_ftnref2" title="">^[2]  On October
9, 2011, defendant and Jesse Medina were in Hollywood.  Defendant was a gang member, but Jesse was
not.  Jesse was shot and died at the
hospital.  The primary suspect was
arrested that night and remained in custody at the time of trial.  There were no other potential suspects.  The suspect was not a documented gang member,
but his father was a hard-core “original gangster” from a rival gang.  

            On October 10, 2011, defendant armed
himself with a loaded weapon and rode a bicycle to a park in South Central Los
Angeles.  There were a number of people
in the park—men, women and children.  The
park was frequented by members of the rival gang.  Defendant approached three individuals—rival gang
members Christian Perez and Oscar Valenciano and a companion, Johanna Gonzalez.
 Mr. Perez had conspicuous gang
tattoos.  Because he was not wearing a
shirt, his gang tattoos were visible to people walking past.  Defendant walked up to the three individuals
and uttered words disrespectful of the rival gang.  He pointed the gun at Ms. Gonzalez’s face
from 18 inches away.  Ms. Gonzalez said
she “wasn’t from nowhere” in response to the gun being pointed at her.   Defendant then shot Mr. Valenciano and Mr.
Perez.  When Ms. Gonzalez heard the first
gunshot, she tried to run.  Defendant
shot Ms. Gonzalez in the leg and hip, causing her to fall to the ground.  As she lay on the ground, defendant shot her
in the back.  He also tried to shoot her in
the head, but the gun misfired.  Ms.
Gonzalez heard a clicking sound. 
Defendant rode away on his bicycle.  With police officers in pursuit, defendant
threw the gun under a school bus.  

            Mr.
Valenciano died of multiple gunshot wounds. 
Ms. Gonzalez underwent a hip replacement and had a metal plate in her
leg.  She had residual numbness in her
back.  Mr. Perez was shot through the
knee.  The injury caused him to limp.  

 

2.  The gang evidence

 

            Detective Roberto
Bourbois testified as to the rival gangs. 
Detective Bourbois was an experienced gang homicide investigator.  Detective Bourbois was familiar with
defendant’s gang.  It was a very small
gang of about 60 members spread out across southeast Los Angeles.  The gang was associated with the Mexican
Mafia.  The gang’s primary activities
included attempted murder and street robberies. 


            The
victims’ gang was one of the oldest Hispanic gangs in Los Angeles.  It had been aligned with the Mexican Mafia
from time to time.  Gang members were
found in Hollywood as well as west of downtown and other areas.

            Detective
Bourbois described the importance of respect in gang culture:  “[T]o have respect is above all important in
the gang culture.  If you don’t have
respect, you’re not much of a gang. 
[¶]  Respect is taken.  It’s taken . . . through intimidating the
public.  It’s taken through standing up
to the rivals, being involved in criminal activity.  That’s one of the components of what makes a
gang.  [¶]  . . . I think respect in reality is more
fear.  It’s an atmosphere where you
create that fear in the community and, therefore, it’s translated into
respect.  [¶]  But if you don’t have that respect, then
you’re not a gang.  You can’t
function.” 

            Detective
Bourbois further explained that retaliation is key to maintaining respect:  â€œ[I]f an individual gang member is
disrespected and he doesn’t immediately get retaliation or pay back, if that
doesn’t happen then they lose respect not only in the eyes of their rivals but
in their own gang.  [¶]  If you start to lose that respect, you start
getting kind of out of the circle of this gang environment where you’re not
trusted because you’re not willing to defend the honor of the gang.”  When a gang member uses a catch phrase to put
down a rival gang member, the rival gang member is expected to retaliate.  Detective Bourbois also explained that gang
members, whether perpetrator or victim, do not cooperate with the authorities.  A snitch will be severely hurt or
killed.  Community members are also
expected not to cooperate with the authorities. 
The gang creates an atmosphere of intimidation to prevent community
members from assisting law enforcement. 

            Defendant’s
gang and the victims’ gang had been rivals for at least 10 years.  The park where the shooting occurred was
frequented by the victims’ gang.  Defendant
had multiple gang tattoos on his head and torso, including his gang’s name.  He also had the initials of the gang’s name
tattooed on his chest covering the entire front of his torso.  Detective Bourbois testified that a person
who puts tattoos on his or her head and neck is demonstrating a great deal of
loyalty to the gang.  A day after Jesse’s
death, defendant got a tattoo near his eye. 
The tattoo was of a crossed-out number signifying the rival gang with a “K”
next to it.  According to Detective
Bourbois, the tattoo showed defendant was an enemy of the rival gang.  The K was for kill.  It meant defendant wanted to harm or kill
members of the rival gang.  

            In response
to a hypothetical question tracking the facts of this case, Detective Bourbois testified
in his opinion the crime was committed for the benefit of the assailant’s
gang.  The detective relied on the
following hypothetical facts:  the assailant
and the victims were rival gang members; the park was a known rival gang
hangout; if you wanted to find a member of the rival gang, you would go to that
park; and the shooting itself and the manner in which it was executed elevated
the status of the assailant’s gang.  Detective
Bourbois stated there could be a revenge component to the crime.  But when a gang, especially a small gang, is attacked
by a rival, they must retaliate or lose respect.  Factors also showing a retaliatory motive
included:  the rival gang was made up of
pockets in different areas of the city that were associated in name only; the
park was geographically distant from the location where Jesse was killed; the
possibility that a gang member in the park was involved in Jesse’s murder was
remote; defendant’s newest tattoo indicated there would be retaliation; and the
two gangs were long-time rivals. 

 

B.  The Defense Case

 

            Witnesses
testified that at the hospital, while Jesse was in surgery, defendant was
acting desperate and crazy.  Defendant
was told Jesse was dead.  Defendant then
hit a window.  Defendant asked the
doctors whether they had done everything they could to save Jesse.  After Jesse died and the family returned
home, defendant’s condition worsened.  Defendant
was seen talking to himself.  Also,
defendant was talking to Jesse, who as noted was dead.  Defendant’s sister, Evelyn Medina,
testified:  “He was talking to
himself.  And he was talking to Jesse,
telling him that why did he left him, that what is he going to do now without
him.  [¶] 
And then just telling Jesse that he wasn’t going to forgive him, that he
told him that he wasn’t going to leave him and he left him.  [¶]  He
was saying that the reason he was doing good now was because of Jesse, and that
God just took him away from him . . . .”  Ms. Medina testified, “[Defendant] was saying
that it should have been him, the one that had got killed, not Jesse, because
he’s the one that has all the tattoos and Jesse wasn’t gang related.” 

            Defendant’s
girlfriend of 13 years, Jessica Schufford, testified that when defendant called
her from the hospital he was “hysterical” and “frantic.”  At the hospital, defendant said to Ms.
Schufford:  “Jessica, they shot my
brother.  They shot my brother.  Why would they want to shoot my brother?  I was right there.”  Ms. Schufford described defendant’s
relationship with Jesse:  “It was very
close.  [Defendant] loved [Jesse] more
than anybody in the world.”  After Jesse
was shot, defendant was unable to sleep.  The inability to sleep continued until
defendant was arrested.  Defendant’s
mental condition deteriorated after Jesse was killed.   

            Defendant
testified in his own defense as follows. 
He was a gang member.  But Jesse
was not a gang member.  On the night Jesse
was shot, defendant heard one of those involved yell out a number identifying
the rival gang.  After Jesse died, defendant
was depressed and unable to sleep.  He
had been using crystal methamphetamine every day since before the shooting.  Prior to Jesse’s death, defendant had no
particular hatred of the rival gang.  Defendant
testified he had not been “gang-banging” as he had been trying to change his
life.  After Jesse died, defendant got a
new tattoo.  This was a way to disrespect
the rival gang.  The only reason
defendant went to the park, rival gang territory, and got the new tattoo was
that Jesse had been killed.    

            On the day
after Jesse died, defendant rode a bicycle eight blocks to get a gun from a
friend’s house.  Carrying the loaded
weapon, defendant rode aimlessly screaming out a gang slur at anyone who looked
like a Latino gang member.  Defendant
testified he was not:  thinking straight;
thinking about shooting anyone; and thinking past what he was doing at the
moment.  Defendant testified he was angry
and just mad at the world.  Defendant
approached the three victims in the park. 
One of them said something to defendant. 
Defendant became angry.  One of
the two men appeared to reach for a gun. 
Then in response, defendant started firing his weapon.  He did not remember pulling out the gun.  Defendant did not remember shooting Ms.
Gonzalez.  He was a little bit drunk at
the time, but he was not under the influence of methamphetamine.  

>

III.  DISCUSSION

 

A.  Ineffective Assistance of Counsel:  Provocation Instruction

 

            Defense
counsel, Mark Shapiro, asserted in the trial court:  defendant was not guilty of first degree
murder; defendant’s actions were driven by intense emotions in the aftermath of
Jesse’s death; in other words, defendant did not act willfully, deliberately and
with premeditation.  The jury was
instructed that provocation, measured objectively, can reduce an intentional
killing from murder to manslaughter.  The
jury was not instructed, however, that provocation inadequate to reduce murder
to manslaughter may nevertheless raise a reasonable doubt whether the defendant
willfully killed with deliberation and premeditation.  (See CALCRIM No. 552; CALJIC No. 8.73)href="#_ftn3" name="_ftnref3" title="">^[3]  This point of law is well established.  (See People
v. Avila (2009) 46 Cal.4th 680, 707; People
v. Carasi (2008) 44 Cal.4th 1263, 1306; People
v. Rogers (2006) 39 Cal.4th 826, 877-878; People v. Cole (2004) 33 Cal.4th 1158, 1217; People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on
another point in People v. Barton (1995)
12 Cal.4th 186, 201; People v. Valentine (1946)
28 Cal.2d 121, 132; People v. Thomas (1945)
25 Cal.2d 880, 903.)  As Division One of
the Court of Appeal for the Fourth Appellate District explained in >People v. Hernandez (2010) 183
Cal.App.4th 1327, 1332:  â€œFirst degree
murder is an unlawful killing with malice aforethought, premeditation, and
deliberation.  (People v. Chun (2009) 45 Cal.4th 1172, 1181.)  . . . 
Second degree murder is an unlawful killing with malice, but without the
elements of premeditation and deliberation which elevate the killing to first
degree murder.  (Ibid.)  To reduce a murder to
second degree murder, premeditation and deliberation may be negated by heat of
passion arising from provocation.  (>People v. Fitzpatrick (1992) 2
Cal.App.4th 1285, 1295-1296.)  If the
provocation would not cause an average person to experience deadly passion but
it precludes the defendant from subjectively deliberating or premeditating, the
crime is second degree murder.  (>Ibid.)” 
(Accord, People v. Padilla (2002)
103 Cal.App.4th 675, 678.)  The existence,
extent and effect of provocation on the defendant’s mind in relation to
premeditation and deliberation are questions of fact for the jury to
resolve.  (People v. Wolfe (1954) 42 Cal.2d 663, 673; People v. Thomas, supra, 25 Cal.2d at pp. 903-904.) 

            A trial
court is not required to instruct a jury on provocation negating willfulness, premeditation
and deliberation absent a defense request. 
(People v. Rogers, supra, 39
Cal.4th at p. 877-879; People v. Mayfield
(1997) 14 Cal.4th 668, 778; People v.
Hernandez, supra, 183 Cal.App.4th at p. 1333.)  Defendant did not request such instruction in
this case.  Defendant contends, however, Mr. Shapiro
was prejudicially ineffective in failing to request the instruction.   

            Our Supreme
Court recently discussed the requisites of an ineffective assistance claim in >People v. Mai (2013) 57 Cal.4th 986,
1009:  “A criminal defendant’s federal
and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15) includes the right to effective
legal assistance.  When challenging a
conviction on grounds of ineffective assistance, the defendant must demonstrate
counsel’s inadequacy.  To satisfy this
burden, the defendant must first show counsel’s performance was deficient, in
that it fell below an objective standard of reasonableness under prevailing
professional norms.  Second, the
defendant must show resulting prejudice, i.e., a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceeding would
have been different.  When examining an
ineffective assistance claim, a reviewing court defers to counsel’s reasonable
tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. 
It is particularly difficult to prevail on an appellate claim of ineffective assistance.  On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record affirmatively
discloses counsel had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. 
All other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding. 
(E.g., People v. Vines (2011)
51 Cal.4th 830, 875-876 . . . ; People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)”

            Defendant
cannot establish on direct appeal that Mr. Shapiro’s performance was
deficient.  Mr. Shapiro was not
asked to explain why he did not request an instruction on provocation in
relation to premeditation and deliberation. 
Mr. Shapiro may have made a tactical decision that omitting the instruction
was in his client’s interest.  Mr. Shapiro
may have thought it would be more confusing than helpful.  He may have considered the instructions given
adequate to resolve the premeditation and deliberation issue.  He may have been unaware that such instruction
was applicable.  Or he may have relied on
the trial court to properly instruct the jury and failed to notice the
omission.  On the present record, it is
impossible to tell.  (>People v. Mendoza Tello, supra, 15 Cal.
4th at pp. 266-267; People v. Wickersham,
supra, 32 Cal.3d at p. 334 [failure to sua sponte instruct on second degree
murder].)

            Even if
defendant could establish Mr. Shapiro’s performance was deficient, there
was no resulting prejudice.  The defense
presented evidence defendant was distraught and depressed after Jesse
died.  Defendant admitted shooting the
three victims.  Defendant said he did not
plan to assault them; he fired his weapon only when one of the victims appeared
to reach for a gun.  Mr. Shapiro argued
to the jury that defendant was unstable in the aftermath of Jesse’s murder.  Mr. Shapiro argued defendant did not
plan anything, but acted out of intense emotion.  

            The jury
was instructed:  “The defendant is guilty
of first degree murder if the People have proved that he acted willfully,
deliberately, and with premeditation.  The
defendant acted willfully if he intended to kill.  The defendant acted deliberately if he >carefully weighed the considerations for and
against his choice and, knowing the consequences, decided to kill.  The defendant acted with premeditation if he
decided to kill before completing the acts that caused death.  [¶] 
The length of time the person spends considering whether to kill does
not alone determine whether the killing is deliberate and premeditated.  The amount of time required for deliberation
and premeditation may vary from person to person and according to the
circumstances.  A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.  On the other hand, a cold, calculated
decision to kill can be reached quickly. 
The test is the extent of the reflection, not the length of time.”  (Italics added.)   

            These
instructions required the jury to consider defendant’s mental state.  No doubt, the jury could conclude defendant
was distraught, unstable, and overcome with emotion causing him to act rashly
and impulsively when he shot the three victims. 
Under these circumstances, the jury would not have found deliberation
and premeditation.  The jurors would not
have found defendant had carefully considered his choices and knowing the
consequences of his actions had decided to kill rival gang members.  Instead, they would have concluded he did not
act deliberately or with premeditation.  But
the jury, after considering defendant’s mental state as instructed, found he
acted willfully, deliberately and with premeditation.  Given the evidence, argument and jury
instruction in this case, the jury was fully informed it should consider
defendant’s mental and emotional state. 
Nothing in the omitted provocation instruction would have further aided
the jury in that endeavor.  It is not
reasonably probable the jury would have found defendant guilty of second
instead of first degree murder had the provocation instruction been given.  (See People
v. Avila, supra, 46 Cal.4th at pp. 707-708; People v. Fitzpatrick, supra, 2 Cal.App.4th at pp. 1293-1296.)

 

B.  Gang Enhancement:  Sufficiency Of The Evidence

 

         Section
186.22, subdivision (b)(1)(C), enhances an accused’s sentence by 10 years for a
violent felony committed to benefit a criminal street gang.  The gang enhancement under section 186.22,
subdivision (b)(1), has two elements. 
First, the underlying crime must be “committed for the benefit of, at
the direction of, or in association with” a criminal street gang.  Second, the crime must be committed “with the
specific intent to promote, further, or assist in any criminal conduct” by gang
members.  (§ 186.22, subd. (b)(1); >People v. Albillar (2010) 51 Cal.4th 47,
67; People v. Mejia (2012) 211
Cal.App.4th 586, 613.)  The jury found
the gang enhancement allegations true as to all three of defendant’s
crimes.  Defendant argues there was
insufficient evidence to support those findings.  Defendant asserts:  “[N]o substantial evidence was presented
suggesting the shooting at [the park] was motivated by any consideration other
than [defendant’s] grief over the murder of his brother.”  We disagree.

         Our
Supreme Court set forth the applicable standard of review in >People v. Albillar, supra, 51 Cal.4th at
pages 59-60:  “In considering a challenge
to the sufficiency of the evidence to support an enhancement, we review the
entire record in the light most favorable to the
judgment to determine whether it contains name="SR;5412">substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.  (People v. Wilson (2008) 44 Cal.4th 758, 806.)  We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence.  (Ibid.)  If the circumstances
reasonably justify the trier of fact's findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding.  (>People v. Lindberg (2008) 45 Cal.4th 1,
27.)  â€˜A reviewing court neither reweighs
evidence nor reevaluates a witness's credibility.’  (Ibid.)”  Moreover, [reversal on the ground of
insufficiency of the evidence] is unwarranted unless it appears “‘that upon no
hypothesis whatever is there name="SR;5543">sufficient substantial
evidence
to support [the jury's finding].’  [Citation.]”  (People v.
Bolin (1998) 18 Cal.4th 297, 331.) 

         It is true
that not every crime committed by a gang member is gang related.  (People
v. Rodriguez (2012) 55 Cal.4th 1125, 1138; People v. Albillar, supra, 51 Cal.4th at p. 60.)  Mere membership in a gang does not support
imposition of the gang enhancement.  (>People v. Gardeley (1996) 14 Cal.4th 605,
623-624; In re Frank S. (2006) 141 Cal.App.4th
1192, 1196.)  Rather, as the Court of
Appeal for the First Appellate District, Division One, observed in >People v. Martinez (2004) 116 Cal.App.4th
753, 761, “The crime itself must have some connection with the activities of a
gang . . . .”  (Accord, >In re Frank S., supra, 141 Cal.App.4th at p. 1199.)

         Opinion
testimony concerning gang culture and habits is admissible in support of a gang
enhancement allegation and may be relied on by the trier of fact.  (People
v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Gardeley, supra, 14 Cal.4th at p. 617.)  A properly qualified witness may testify about
the meaning of gang tattoos.  (>People v. Ochoa (2001) 26 Cal.4th 398,
437-438, abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; >People v. Hawthorne (1992) 4 Cal.4th 43,
53.)  In addition, a properly qualified
witness may testify in response to hypothetical questions based on the facts of
the case whether, in his or her opinion, a crime as described was gang
related.  (People v. Vang (2011) 52 Cal.4th 1038, 1045; see >People v. Spence (2012) 212 Cal.App.4th
478, 508-509.)

         There
was substantial evidence from which the jury could find defendant committed the
present crimes for the benefit of his gang. 
Defendant was a loyal gang member. 
He had multiple gang tattoos on his head as well as other parts of his
body.  He believed a rival gang, to which
at least two of the victims belonged, was responsible for Jesse’s death.  Defendant’s gang and the victims’ gang were
long-time rivals.  On the day after Jesse
was killed, defendant got a new tattoo on his face.  The new tattoo signified he was an enemy of
the rival gang who wanted to harm or kill members of that gang.  Defendant did not go in search of the person
who shot Jesse.  Defendant did not go
after one of the gunman’s fellow gang members from the Hollywood area where
Jesse was shot.  Instead, defendant,
armed with a loaded weapon, went to a park in South Central Los Angeles.  The park was known to be frequented by
members of the rival gang.  Defendant
walked up to rival gang members, one of whom had conspicuous gang tattoos.  He made a statement disrespecting the rival
gang, then opened fire on the victims.  Detective
Bourbois testified that maintaining a gang’s respect is critical to a gang’s
continued existence.  Retaliating for a
shooting by a rival gang is one important way to maintain a gang’s
respect.  Especially when a small gang
like defendant’s is attacked by a rival, the gang must retaliate or lose
respect.  In Detective Bourbois’s
opinion, the crime, as hypothetically described, was committed to benefit
defendant’s gang.  This was substantial
evidence supporting the jury’s gang enhancement findings.  Defendant also argues double jeopardy
principles preclude a retrial on the gang enhancements.  Because we find substantial evidence
supported the enhancements, there is no potential for a retrial, and we need
not consider defendant’s double jeopardy argument.

 

C.  The Firearm Use Enhancement

 

            Defendant
argues imposing a section 12022.53, subdivision (d) firearm use enhancement on
a defendant convicted of murder violates California’s multiple conviction rule
and constitutional double jeopardy principles. 
Defendant further urges that recent decisions of the href="http://www.mcmillanlaw.com/">United States Supreme Court suggest
double jeopardy principles should be applied in a single unitary trial.  Defendant concedes the California Supreme
Court has rejected his position.  (>People v. Sloan (2007) 42 Cal.4th 110,
115-125; People v. Izaguirre (2007)
42 Cal.4th 126, 130-134.)  Defendant asserts,
“[B]oth Sloan and >Izaguirre are flawed and clearly
misapply . . . United States Supreme Court precedents.”  Absent controlling United States Supreme
Court authority, we are, of course, bound by the decisions of the California
Supreme Court.  (People v. Letner (2010) 50 Cal.4th 99, 197-198; >Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)  Therefore, we must
reject defendant’s contentions.

 

D.  Sentencing

 

            There are
several jurisdictional sentencing modifications that must be made.  First, the trial court imposed a
25-years-to-life sentence under section 12022.53, subdivision (d) for firearm
use.  The trial court should also have
imposed and then stayed consecutive 10 and 20 year sentences under section
12022.53, subdivisions (b) and (c) respectively.  (People
v. Gonzalez (2008) 43 Cal.4th 1118, 1122-1123, 1130; People v. Warner (2008) 166 Cal.App.4th 653, 659.)  The judgment must be modified as to all three
counts and the abstract of judgment amended to so provide.

           Second,
the trial court stayed the sentences on two prior separate prison term
enhancements found true under section 667.5, subdivision (b).  The trial court was required to either impose
or strike the enhancements as to each indeterminate count.  (People
v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Garcia (2008) 167 Cal.App.4th 1550, 1561-1562.)  Upon remittitur issuance, the trial court
must either impose or strike the prior separate prison term enhancements.

           Third,
the trial court purported to stay the gang findings.  There is no authority to stay a gang finding
under these circumstances.  As to count
1, the gang finding created a 50-year minimum parole eligibility date because
of defendant’s prior attempted second degree robbery conviction.  As to counts 2 and 3, the gang finding created a 30-year
minimum term as to each count because of defendant’s prior attempted second
degree robbery conviction.  (>People v. Jefferson (1999) 21 Cal.4th
86, 90; People v. Mendoza (2000) 78 Cal.App.4th 918, 929.)  No gang enhancement was imposed as to any
count because defendant was convicted of a felony punishable by imprisonment
for life.  Rather, the gang finding
created minimum eligibility parole dates. 
(§ 186.22, subd. (b)(1), (5); People
v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.)  Thus, the oral pronouncement of judgment is
modified to set aside the order staying the gang finding.

            Fourth, the
trial court orally imposed a single $40 court operations assessment under
section 1465.8, subdivision (a)(1).  The
trial court should have imposed the assessment as to each count for a total of
$120.  (People v. Sencion (2012) 211 Cal.App.4th 480, 484-485; >People v. Schoeb (2005) 132 Cal.App.4th
861, 865-868; see People v. Alford (2007)
42 Cal.4th 749, 758, fn. 6.)  The
judgment must be modified to so provide. 
The abstract of judgment is correct in this regard and need not be
amended. 

            Fifth, defendant
received credit for 445 days in presentence custody.  However, because he was arrested on October
10, 2011, and sentenced on January 8, 2013, defendant was entitled to credit
for 457 days in presentence custody.  The
judgment must be modified and the abstract of judgment amended to so provide.

            Sixth, the
abstract of judgment must be amended to correctly set forth the terms imposed
on all counts.  At present, the abstract
of judgment incorrectly states defendant received a sentence of 25 years to
life on count 1. In fact, defendant received a sentence of 75 years to life
after the doubling of the term for first degree murder.  As to counts 2 and 3, the abstract of
judgment incorrectly states defendant received a sentence of 15 years to
life.  In fact, defendant received as to
both counts 2 and 3 sentences of 55 years to life after the minimum term
resulting from the gang finding was doubled. 
(As noted above, the order staying the gang enhancement must be
reversed.)  The trial court is to name="SR;4511">personally ensure the abstract of
judgment is amended to properly reflect the judgment, including all of the modifications
discussed above.  (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; >People v. Mitchell (2001) 26 Cal.4th
181, 185.) 

 

IV.  DISPOSITION

 

            The
judgment must be modified to:  impose and
then stay consecutive 10 and 20 year sentences under Penal Code section 12022.53,
subdivisions (b) and (c); provide that defendant is subject to a 30-year parole
eligibility term pursuant to Penal Code section 186.22, subdivision (b)(5) as
to counts 2 and 3 in addition to the firearm use enhancement; impose a $40
court operations assessment under Penal Code section 1465.8, subdivision (a)(1)
as to each count; and award defendant credit for 457 days in presentence
custody.  In all other respects, the
judgment is affirmed.  Upon remittitur
issuance:  the trial court must either
impose or strike the prior separate prison term enhancements under Penal Code
section 667.5, subdivision (b); the abstract of judgment must be corrected to
correctly reflect the 75 years to life sentence on count 1 and the 55 years to
life sentences on counts 2 and 3; and the superior court clerk must prepare an
amended abstract of judgment and deliver a copy to the Department of Corrections
and Rehabilitation.  Because of the
complexity of the sentences, the trial court is to personally supervise the
preparation of the amended abstract of judgment.

                                                NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                TURNER,
P.J.

 

 

We concur:

 

 

            MOSK, J.

 

 

            KUMAR, J.href="#_ftn4" name="_ftnref4" title="">^*