P. v. Aragon
jury found defendant and appellant Ricky Tommy Aragon (hereafter defendant) guilty as charged of attempted second degree robbery (Pen. Code, 664/211) (count 1), assault with a firearm (Pen. Code, 245, subd. (a)(2)) (count 2), and participating in a criminal street gang (Pen. Code, 186.22, subd. (a)) (count 3). The jury further found true the allegation, in connection with each count, that in the commission of the alleged offense a principal was armed with a firearm (Pen. Code, 12022, subd. (a)(1)).[1]
The district attorney prosecuted defendant on the theory that he had aided and abetted Alexander Gamez, the actual perpetrator, in the commission of the noted crimes, all of which occurred during a single incident on December 22, 2003, and involved a single victim, Craig Sullivan. At the conclusion of their joint trial, the jury was unable to reach verdicts with respect to Gamez on any of the three charges but found defendant guilty as charged on all three counts.
In this appeal, defendant challenges the sufficiency of the evidence to support his conviction on count 3, the criminal street gang charge, and to support the jurys true finding on the related section 12022, subdivision (a)(1) enhancement. In a supplemental brief, defendant asks that we take judicial notice of the subsequent retrial of Alexander Gamez in which the prosecutor dismissed the charges midtrial when the victim, Craig Sullivan, stated that Gamez definitely was not the person who had assaulted and attempted to rob him. Because defendant was prosecuted as an aider and abettor of Gamez, and the charges against Gamez were dismissed, defendant contends that Court must reverse the judgment and dismiss the criminal street gang charge. Defendant also contends that the jury should have been instructed on the need for unanimity because Gamez fired four shots at Sullivan, each of which defendant contends constituted a separate act of assault with a firearm but the prosecutor charged only one crime based on those acts. Moreover, defendant contends that the trial court should have stayed execution of the sentence imposed on defendants attempted robbery conviction because that crime and the crime of assault with a firearm were based on the same criminal act within the meaning of section 654. As his final claim, defendant contends that the trial court violated his Sixth Amendment right to have a jury determine all factual issues because in imposing the upper term sentence on count 2 and the consecutive sentences on counts 1 and 3 the trial court relied on facts other than those the jury found true at trial.
Court agree with defendants claim under section 654 and in light of Cunningham v. California (Jan. 22, 2007, No. 05-6551) U.S. [127 S.Ct. 856] must also agree with defendants challenge to the trial courts imposition of the upper term sentence. Therefore, Court vacate defendants sentence and remand the matter to the trial court for further proceedings and with directions that in resentencing defendant, the trial court must stay execution of the sentence imposed on count 1. The judgment is otherwise affirmed.
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