Filed 5/2/17 P. v. Miranda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,

Plaintiff and Respondent,

v.

ISAAC JACOB MIRANDA,

Defendant and Appellant.


E065470

(Super.Ct.No. FSB1403920)

OPINION


APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed as modified with directions.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Isaac Jacob Miranda punched a 57-year-old stranger in the face for no apparent reason, other than to impress his fellow gang members. Defendant’s punch caused the victim to suffer bleeding from the face and mouth and a fractured cheek bone and eye socket.
Following a jury trial, defendant was convicted of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The jury also found true that defendant had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and that defendant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). In a bifurcated proceeding, the trial court found true that defendant had suffered two prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior strike conviction (§§ 667, subds. (b)-(i), 1173.12, subd. (a)-(d)). As a result, defendant was sentenced to a total term of 28 years in state prison with credit for time served as follows: eight years for the assault conviction (the upper term of four years, doubled due to the prior strike); a consecutive three-year term for the great bodily injury allegation; a consecutive 10-year term for the gang allegation; a consecutive five-year term for the prior serious felony conviction; and two consecutive one-year terms for the two prison priors. Defendant appeals from the judgment.
Defendant’s sole contention on appeal is that the trial court violated section 1170.1, subdivision (g), by erroneously sentencing him to both a three-year enhancement for the great bodily injury allegation pursuant to section 12022.7 and a 10-year violent felony enhancement for the gang allegation pursuant to section 186.22, subdivision (b)(1)(C). The People agree the trial court erred in sentencing defendant. We agree with the parties and modify defendant’s sentence by staying the three-year term for the great bodily injury enhancement. In all other respects, we affirm the conviction.
II
FACTUAL BACKGROUND
On August 17, 2014, San Bernardino Police Officers Ahmed and Olvera, who were assigned to the gang unit, were patrolling near the intersection of West Fifth Street and North G Street in San Bernardino when they saw defendant, a West Side Verdugo gang member, punch a 57-year-old man in the face as his fellow gang members watched. Prior to the assault, defendant was yelling “West Side Verdugo” and making gang signs towards some people in front of an apartment complex. Officer Olvera knew defendant from prior contacts. Officer Olvera had contacted defendant over 10 times in the past for investigations into criminal street gang activity. Both Officers Olvera and Ahmed knew the individuals at whom defendant was yelling as members of the West Side Verdugo gang. After witnessing the assault, the officers pulled over, ran towards defendant, called him by name, and ordered him to the ground. At that time, defendant turned around and laid down on the sidewalk with his hands behind his back.
Defendant had a tattoo on the side of his head that stated “Mt. Vernon.” Defendant also had a large tattoo on the back of his head described as a “kanpol.” Officer Olvera, a qualified gang expert with respect to the West Side Verdugo gang, explained the large “kanpol” “is a sign or symbol common amongst sureno gang members within the jail facility identifying an individual as a Southern California criminal street gang member.” Mount Vernon was a “clique,” or smaller group or subset of the West Side Verdugo gang. Based on his training and experience as a gang expert, Officer Ahmed opined defendant committed the crime for the benefit of the West Side Verdugo gang by making people who live in the area afraid to report crimes committed by gang members.
The victim, who was not a gang member and who was a stranger to defendant, was walking down the sidewalk, on his way home from church. Defendant walked up to the victim, said “ ‘[H]i, sir,’ ” and then punched him in the face. After the assault, defendant called out, “West Side Verdugo” and displayed a “ ‘W’ ” hand sign to signify the West Side Verdugo gang. The victim immediately fell to the ground and was bleeding from his face. His cheek bone was broken in four spots and was rotated inward. His eye socket was also fractured, which caused his eye to sink back in his head. The victim required extensive surgery that involved having multiple titanium plates put into his cheeks, a titanium implant into his eye socket, and multiple stitches on the roof of his mouth.
Defendant claimed that he was no longer a gang member and that he had the tattoos because he wanted them. He did not remember having any interaction with the victim and denied punching the victim. He did not remember fighting with anyone that day, but claimed that he was the one who was punched by someone earlier that day and had injuries to his face that “could have” been sustained before his arrest.
III
DISCUSSION
Defendant argues that the trial court erred in imposing both the enhancement for infliction of great bodily injury under section 12022.7, subdivision (a), and the gang enhancement under section 186.22, subdivision (b)(1)(C). The People concede the trial court erred, but disagree with defendant’s request that this court should strike the three-year term imposed for the great bodily injury enhancement. Rather, the People believe the proper remedy is to order the sentence on the great bodily injury enhancement stayed. We agree with the People.
Section 186.22, subdivision (b)(1)(C), provides that when the underlying “felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.” A violent felony includes “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 . . . .” (§ 667.5, subd. (c)(8).)
Section 12022.7, subdivision (a), provides that “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”
Section 1170.1, subdivision (g), provides that “[w]hen two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.” (§ 1170.1, subd. (g).) Our Supreme Court states that the rationale behind the statute, as part of the determinate sentencing law, is “ ‘to achieve greater uniformity in sentencing by providing a limited range of sentencing options for each offense.’ ” (People v. Rodriguez (2009) 47 Cal.4th 501, 508 (Rodriguez).)
In Rodriguez, supra, 47 Cal.4th 501, the defendant faced additional punishments on his assault charge under section 12022.5, subdivision (a) (personal use of a firearm), and section 186.22, subdivision (b)(1)(C) (gang enhancement). (Rodriguez, at p. 508.) Applying the rationale from People v. Black (2005) 35 Cal.4th 1238 (Black), overruled in part by Cunningham v. California (2007) 549 U.S. 270, 293, to section 1170.1, subdivision (f), the Rodriguez court determined that the section 12022.5, subdivision (a) enhancement fell within the statute’s limiting language. (Rodriguez, at p. 508.) Therefore, “[b]ecause two different sentence enhancements were imposed for defendant’s firearm use, [the statute] requires that ‘only the greatest of those enhancements’ be imposed.” (Id. at pp. 508-509.)
Similarly, applying the Supreme Court’s reasoning in Rodriguez, the Court of Appeal in People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), concluded that section 1170.1, subdivision (g), prohibits the imposition of both a three-year enhancement under section 12022.7, subdivision (a) and a 10-year enhancement under section 186.22, subdivision (b)(1)(C), when “[t]he same infliction of great bodily injury on the same victim” turns an “underlying assault offense into a ‘violent felony’ under section 667.5.” (Gonzalez, supra, at p. 1332.) Instead, the court held that the trial court should impose “only the greatest of those enhancements.” (Ibid.)
The sentencing issue in the Gonzalez case is echoed in the case at bar. In this case, the trial court imposed a 10-year term for the gang enhancement under section 186.22, subdivision (b)(1)(C), and a consecutive three-year term for the great bodily injury enhancement under section 12022.7, subdivision (a). Both enhancements were imposed based on defendant’s infliction of great bodily injury on the same victim in the commission of a single offense. Additionally, like the sentence enhancements in Gonzalez, here defendant’s infliction of great bodily injury that gave him a section 12022.7, subdivision (a) enhancement also made it a violent felony that subjected him to a section 186.22, subdivision (b)(1)(C) enhancement. Thus, section 1170.1, subdivision (g), precludes the imposition of both enhancements; only the 10-year gang enhancement should have been imposed. (See Gonzalez, supra, 178 Cal.App.4th at pp. 1331-1332.)
Having reviewed the entire record and applicable authorities, we accept the People’s concession and order the three-year term for the great bodily injury enhancement stayed. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1126-1127 [only one enhancement may be imposed and executed for each crime, and allows the trial court to impose and then stay all other prohibited enhancements].)
IV
DISPOSITION
The judgment is modified to reflect that the three-year term for the great bodily injury enhancement under section 12022.7, subdivision (a), is stayed. The trial court is directed to prepare an amended abstract of judgment to reflect the modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:


HOLLENHORST
Acting P. J.


SLOUGH
J.