P. v. Redix

Filed 2/14/07  P. v. Redix CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Brian S. McCarville, Judge.  Affirmed with directions.

            Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Annie Featherman Fraser and Kristen K. Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

            A jury found defendant and appellant Esau Redix guilty of attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a), count 1),^[1] two counts of assault with a firearm (§ 245, subd. (b), counts 2 & 4), and one count of attempted murder (§§ 664/187, subd. (a), count 3).  The jury also found true various enhancement allegations.  The trial court sentenced defendant to a determinate sentence of 37 years in state prison and an indeterminate sentence of life with the possibility of parole, plus a consecutive term of 25 years to life.

            On appeal, defendant contends that the minute order and abstract of judgment erroneously indicate that the court imposed a determinate sentence of 62 years.  We agree and remand the matter to the trial court to make the appropriate corrections.

FACTUAL BACKGROUND^[2]

            On May 30, 2005, about 6:00 p.m., April Henderson was walking with her cousin Miracle when she saw defendant and two other men.  Miracle started talking to defendant, and defendant called her a name and said he should have slapped her.  Henderson told defendant not to slap her.  Defendant and his friends walked across the street, while Henderson and Miracle walked up the driveway to Henderson's mother's house.  Henderson heard some gunshots, so she walked back to the end of the driveway, to protect her small cousins, who were playing outside.  When Henderson reached the end of the driveway, she felt something hit her leg and felt pain.  Henderson saw defendant holding his arm straight out in front of him, holding something like a gun.  Henderson was shot and had two holes in her leg.  Henderson's mother, Carolyn Gray, heard some commotion and went outside to see what was going on.  She saw defendant with a gun and saw her daughter get shot.  Gray ran for cover.

ANALYSIS

            Defendant contends that the minute order and abstract of judgment fail to accurately reflect the trial court's imposition of his determinate sentence.  He asserts that the court sentenced him to a determinate sentence of 37 years, along with an indeterminate sentence of 25 years to life.  However, the minute order and abstract of judgment erroneously indicate that he received a determinate term of 62 years.  Defendant is correct.

            A.  Procedural Background

 Defendant was charged by information with two counts of attempted premeditated murder (§§ 664/187, subd. (a), counts 1 & 3), and two counts of assault with a firearm (§ 245, subd. (b), counts 2 & 4), along with numerous enhancement allegations.  The information also alleged that defendant had served two prior prison sentences, within the meaning of section 667.5, subdivision (b), but the court eventually struck the prison priors.  A jury found defendant guilty of counts 1, 2, and 4, and found him guilty of the lesser included offense of attempted murder (§§  664/187, subd. (a)) in

count 3.  As to count 1, the jury found true the allegations that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), a principal personally discharged a firearm (§  12022.53, subds. (c) & (e)(1)), a principal personally discharged a firearm and caused great bodily injury (§  12022.53, subds. (d) & (e)(1)), defendant personally used a firearm (§ 12022.53, subd. (b)), defendant personally discharged a firearm (§ 12022.53, subd. (c)), and defendant personally discharged a firearm and caused great bodily injury (§ 12022.53, subd. (d)).  As to count 2, the jury found true the allegations that defendant personally used a firearm (§ 12022.5, subds. (a) & (d)) and that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)).  As to count 3, the jury found true all the same allegations as in count 1, except for the allegations that a principal and defendant personally discharged a firearm and caused great bodily injury (§  12022.53, subds. (d) & (e)(1)).  As to count 4, the jury found true the allegation that defendant personally used a firearm (§ 12022.5, subds. (a) & (d)).  The jury also found true the allegation that all four counts were committed in furtherance of a criminal street gang (§ 186.22, subd. (b)(1)(C)).

            At sentencing, the court stayed the sentences on counts 2 and 4 and their accompanying enhancements, pursuant to section 654.

            As to count 3, the court imposed the middle term of seven years on the crime of attempted murder.  The court imposed 20 years on the section 12022.53, subdivision (c), enhancement, to run consecutive to the seven-year term.  The court also imposed a 10-year term on the gang enhancement allegation, to run consecutive.

            As to count 1, the court imposed the term of life in prison with the possibility of parole, to run consecutive to the sentence in count 3.  The court also imposed a consecutive term of 25 years to life on the section 12022.53, subdivision (d), great bodily injury enhancement.

B.  The Minute Order and Abstracts of Judgment Should Be Corrected

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