P. v. Molina

P. v. Molina



















Filed 3/30/10 P. v. Molina CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 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
EIGHT




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THE PEOPLE, Plaintiff and Respondent, v. MICHAEL IVAN MOLINA, Defendant and Appellant.

B210503 (Los Angeles County Super. Ct. No. BA271207)

APPEAL from
a judgment of the Superior Court
of Los Angeles
County,

Bob S. Bowers, Jr., Judge.
Affirmed as modified.



George L.
Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.




Edmund G.
Brown, Jr., Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant
Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys
General, for Plaintiff and Respondent.



_



This appeal arises from a criminal case involving two gang-related,
drive-by shootings. A jury convicted
Michael Molina of one count of first degree murder in the first shooting (Pen.
Code, § 187, subd. (a)) and three counts of attempted premeditated murder in the second
shooting. (Pen. Code, §§ 664/187,
subd. (a).) The guilty verdicts on the
murder and attempted murder counts included findings that Molina personally
discharged a firearm which caused the victim’s death, that a principal
personally discharged a firearm which caused the victim’s death (Pen. Code, §
12022.53, subds. (d) & (e)), and that the crime was committed for the
benefit of a criminal street gang. (Pen. Code, § 186.22, subd.
(b)(1)(A).) The trial court found true
that Molina suffered a prior strike conviction.
We affirm all of Molina’s convictions, modify his sentence, and remand
the cause for a corrected abstract of judgment.

FACTS

On May 6,
2004, Byron “Dext” Castro, a member of a “tagging crew” known as “M.R.E.,”
played basketball at a local elementary school with a group of neighborhood
friends, Marcus “Flip” Warren, Christian “Rush” Rodriguez, and Nestro “Trave”
Castro (the attempted murder victims), and Jonathan “Theus” Villanueva (the
murder victim), all of whom were members of a tagging crew known as “M.D.K.”[1] After the group finished with their game,
they informally arranged to rejoin after Byron and Jonathan met up with Byron’s
sister, Mayrin Castro.

As Byron,
Mayrin, and Jonathan were walking on Catalina Street
in the direction of their friends, a Blazer occupied by five members of the
“3AK” a criminal street gang (for “3rd Avenue
Killers”) drove past. Theodore Johnson
was driving the Blazer; Molina sat in the front passenger seat; Brian Bastidas,
Mynor “Drek” Rubio, and Jose “Daze” Duarte
were in the backseat. Johnson drove the
Blazer down Catalina Street
until it reached a dead-end, where Molina told Johnson to “go back around.”
Johnson made a U-turn, and headed back toward Byron, Mayrin and Jonathan.

Near the
intersection of Catalina Street
and 36th Place, the Blazer
drove up from behind Bryon, Mayrin, and Jonathan, and stopped alongside
them. Molina leaned out the front
passenger window, and said, “Where are you from‌” or “What do you write‌” After Byron responded, “M.R.E.,” Molina
turned his attention to Jonathan. As
Johnson backed up the Blazer, Molina asked Jonathan where he was from, and
Jonathan replied, “M.D.K.” At that
point, Molina said, “Come here, I got something for you.” He then pulled out a revolver and shot
Jonathan three times. Jonathan died from
a gunshot wound caused by a bullet that entered his chest by his left armpit,
and exited the right side of his chest.

After
Molina shot Jonathan, Johnson drove the Blazer around a “couple” of turns to a
location on Budlong Avenue,
near 36th Place, a little
more than a block away, where Marcus, Nestor, and Christian were hanging
out. As Johnson drove the Blazer by
Marcus, Nestor and Christian, Molina put his body halfway out the front
passenger window, and fired three shots in their direction over the roof of the
vehicle. As the Blazer sped away, a hat
that Molina was wearing flew off his head, and was left behind at the scene of
the shooting.

Shortly
after the shootings, Byron and Mayrin Castro identified Jose Duarte as the
shooter from police photo line-ups. Duarte,
Bastidas, and Johnson were taken into custody.

In early
2006, Bastidas pleaded guilty as an accessory; he served one and one-half years
in county jail. The People filed a
juvenile petition against Duarte,
and, in November 2005, he admitted to a murder charge in exchange for his
promise to testify on behalf of the People, and an agreement that he would be
released from custody no later than this 25th birthday. Bastidas and Duarte
both testified for the prosecution at Molina’s trial, and both identified
Molina as the shooter.

Molina fled
to Minnesota after the
shootings. In November 2004, Molina was
arrested at an apartment complex in Bloomington,
Minnesota.
At the time of his arrest, Molina said that he name was “Isaiah
Villanuevo.” When an officer said that
they knew his name was not “Villanuevo,” Molina replied, “Okay, you got
me.”

Los Angeles
Police Department Detective Robert Lait traveled to Bloomington for Molina’s
arrest, and interviewed Molina’s sister, Catherine Molina, who said that Molina
had taken the name “Isaiah Villanuevo” because he knew he was “wanted for
murder” in Los Angeles. Catherine Molina
said that Molina had admitted to her that he had been “in the car” at the time
of the shootings, and that he gave a general description of the events,
including that there had been five members of the 3AK gang involved, and that
“T.J.” had been driving.

In January
2005, the People filed an information charging Molina with one count of first
degree murder (Pen. Code, § 187, subd. (a)) and three counts of attempted
premeditated murder (Pen. Code, §§ 664/187, subd. (a)). On each count, the information alleged: that appellant personally and intentionally
used and discharged a handgun causing great bodily injury and death within the
meaning of Penal Code sections 12022.53, subdivisions (b), (c), and (d); that a
principal personally and intentionally used and discharged a handgun causing
great bodily injury and death within the meaning of Penal Code sections
12022.53, subdivisions (b), (c), (d), and (e)(1); and that the offenses were
committed for the benefit of, at the direction of, and in association with a
criminal street gang with the specific intent to promote, further, and assist
in criminal conduct by gang members, within the meaning of Penal Code section
186.22, subdivision (b)(1)(A). At a jury trial in spring 2008, the
People presented evidence establishing the facts summarized above. Molina presented evidence suggesting that Duarte
was the shooter. Despite their pre-trial
photo identifications of Duarte as
the shooter, at trial, Byron and Mayrin Castro identified Molina as the person
who shot Jonathan.

The jury
returned verdicts finding Molina guilty as charged. The trial court found true that Molina
suffered a prior conviction within the meaning of the “Three Strikes” law. After sentencing, the clerk of the court
prepared and filed an abstract of judgment stating that Molina’s “total
sentence is 165 years to life.”







>DISCUSSION

I. Molina’s Request To Retain Private Counsel

Molina contends the judgment encompassing his convictions
and sentence must be reversed because the trial court improperly denied his
request to retain private counsel of his choosing. We disagree.

A. The Right To Retain Private
Counsel

A criminal
defendant has a constitutionally protected right to retain counsel of his or
her choice, and, for that reason, a trial court must undertake all “reasonable
efforts” to assure that a defendant who has the financial resources to retain a
chosen lawyer can be represented by that lawyer. (People
v. Courts (1985) 37 Cal.3d 784, 789-790.)
A key element in addressing a request to retain private counsel,
however, is the reasonableness of the efforts and accommodation necessary to
assure the defendant’s choice. A trial
court may, in the exercise of judicial discretion, deny such a request when the
defendant has been unjustifiably dilatory in attempting to obtain counsel, with
a continuance of trial being an inherent result of the new representation, or
when the orderly administration of justice otherwise outweighs an accommodation
of the defendant’s request. ( >Id. at p. 790; and see, e.g., >People v. Blake (1980) 105 Cal.App.3d
619, 623-624.)

A reviewing
court does not apply a “mechanical test” in determining whether a trial court
properly denied a defendant’s right to retain private counsel; each case must
be decided on its own facts. The
defendant bears the burden to show an abuse of discretion. (People
v. Blake, supra, 105 Cal.App.3d at pp. 623-624.) Where a reviewing court finds that the trial
court improperly denied a defendant’s request to retain private counsel, the
error requires reversal regardless of whether or not the record shows that the
defendant’s ensuing trial was “fair.” ( >People v. Courts, supra, 37 Cal.3d at p.
796.) In short, an erroneous denial of a
request to retain private counsel is reversible per se.

B. The Trial Court Setting

The record
establishes the following context for Molina’s request to retain private
counsel in this case:

·
In January 2005, private counsel Stephen
Rodriguez represented Molina at his preliminary hearing and arraignment.

·
In May 2005, attorney Rodriguez “substituted
out,” and private counsel Matthew Fletcher “substituted in.”

·
In October 2005, the trial court set the case
for jury trial in November 2005.

The court thereafter continued the trial on
several dates until it came to be set to commence in August 2006.

·
On Thursday,
August 18, 2006, the People called their first witness. Midway through the following week, the trial
court granted a defense motion for mistrial “[d]ue to late discovery.”

·
On October
23, 2006, the trial court called Molina’s case for jury trial, but
private counsel Matthew Fletcher indicated that he was engaged in another
trial.

·
On October
25, 2006, the trial court called Molina’s case for jury trial, but
private counsel Fletcher did not appear.


·
On October
26, 2006, the trial court called Molina’s case for jury trial. Another attorney appeared, “standing in for
[private counsel Fletcher].” The court
again put over Molina’s trial.

·
On November
3, 2006, the trial court called Molina’s case for jury trial. Molina was present, “represented by Ivan
Shomer private counsel appearing for Matthew Fletcher” who continued to be
“engaged in trial . . . .” The court trailed the matter to November 9, 2006.

·
On November
9, 2006, private counsel Matthew Fletcher asked the trial court to
“appoint him” on Molina’s case, and the court “list[ed] the items needed for
[its] consideration in that matter.” Due
to the trial court’s unavailability, Molina’s trial was continued.

·
On January
17, 2007, the People and Molina, still represented by private
counsel Matthew Fletcher, announced ready for trial.

·
On January
31, 2007, the trial court put in an order for a panel of
prospective jurors to be ready to go for trial.
Molina continued to be represented by private counsel Matthew
Fletcher.

·
On February
1, 2007, the trial court began hearing prospective jurors’ requests
to be excused from service for “hardship,” and calendared further hearings on
the matter for February 5, 2007. On February
5, 2007, the “hardship” proceedings continued.

·
On February
6, 2007, private counsel Matthew Fletcher and the trial court
engaged in a discussion regarding the availability and cost of reporter’s
transcripts from a related proceedings involving Theodore Johnson (the alleged
driver). When the court indicated that
Fletcher would need to work out those matters with the court reporter, Fletcher
renewed his request to be appointed as Molina’s counsel, and also moved to be
relieved as counsel of record, explaining he could not continue “spending
thousands of dollars . . . out of [his] own pocket.” At the close of the discussion, the trial
court granted Fletcher’s request to be relieved, and issued an order for the
appointment of the Alternate Public Defender to represent Molina. The prospective jurors were excused.

·
On February
20, 2007, the Alternate Public Defender declared a conflict, and
the trial court appointed Bar Panel counsel Jonathan Roberts to represent
Molina. Over the course of the ensuing
year, the trial court regularly continued Molina’s trial.

·
At a pretrial conference on February 27, 2008,
an attorney specially appeared in the trial court, and presented a request from
Molina’s previous private counsel, Matthew Fletcher, to “sub in” as Molina’s
attorney. The trial court denied the
request without hearing from Fletcher himself.


·
On March
18, 2008, attorney Matthew Fletcher appeared in the trial court to
state his case for substituting in as Molina’s trial counsel. The court denied the request at that point,
but indicated that Fletcher would “no doubt” be allowed to substitute in the
event he showed up on the day of trial (April 4, 2008), and announced that he
was ready to proceed.

·
On April
2, 2008, Molina’s lawyer of record, Bar Panel counsel Jonathan
Roberts, filed a written motion to continue Molina’s trial on the ground that
Molina had a constitutional right to retain private counsel of his choosing,
and had expressed a desire to be represented by Mathew Fletcher.

·
On April
4, 2008, the trial court denied the defense motion for a
continuance.

·
On April
7, 2008, the trial court began voir dire. Bar Panel counsel Jonathan Roberts
represented Molina throughout trial.

C. Analysis

The history
of Molina’s case defeats his contention that the trial court abused its
discretion in proceeding with a jury trial in April 2008, with Bar Panel
counsel Jonathan Roberts providing Molina’s defense. Simply put, the record does not support
Molina’s argument that the trial court’s decision to deny his request to
re-retain private counsel Matthew Fletcher shortly before the second trial
rests on an unreasonable balancing of Molina’s right to retain private counsel,
on the one hand, and the interests in the orderly administration of justice, on
the other side. To make our point, we
expand on the history summarized above.

On February 27, 2008, an attorney,
Jaclin Awad, appeared in the trial court, and presented a request from attorney
Matthew Fletcher to “sub in on [Molina’s] case.” The court denied the request, citing the
“long history” of Molina’s case, and Ms. Awad then made this proposal on Mr.
Fletcher’s behalf: “If the court wants
to keep the March 17th zero of 20 date, Mr. Fletcher has previously announced
ready for this case. [¶] It is only a matter of refamiliarizing
himself with this case. Mr. Molina has a
right to [private] counsel. Prior
monetary reasons inhibited him from proceeding with Mr.
Fletcher. . . . [¶] Mr. Fletcher has the
ability I believe to be ready within the time frame of March 17th as a zero of
20th day to proceed in this matter. . . .” After listening to Ms. Awad’s offer, the
trial court agreed to accept Molina’s time waiver (which he gave), and to “go
over to March 17th as zero of 20,” with this advisement: “If Mr. Fletcher is here on March 17th and
assures the court that he will proceed within that time frame, the court will
take that under consideration.”

On March 17, 2008, the trial court
“trailed” the matter to March 18, 2008. The court’s minute order from March 17, 2008, does not reflect an
appearance by attorney Matthew Fletcher.
There is no reporter’s transcript to explain the reason for the one-day
delay. On March 18, 2008, attorney Fletcher appeared in the trial
court, and the following exchange occurred:

“THE COURT: Okay.
Mr. Fletcher . . . let me explain to you what I
intend to do. . . . [¶] >The last day on this matter is April 7th,
2008. . . . [¶] Now,
on April 7th, 2008,
I’m reserving a jury panel, and they will be out front of [the courtroom]. On >April 7th, 2008 >, if you walk into the courtroom and say
you’re prepared to go to trial on that day, you will be substituted in. No hands –– no doubt. If [you do] not come in or [do] not wish to
proceed at that point, Mr. Roberts will go forward at that point. [Emphasis added for purposes of appellate
discussion.] . . . [¶] . . . All
right. We’ve had a discussion at sidebar
on his matter. I think it’s been
agreed . . . between Mr. Roberts and [the prosecutor] at
this point that this matter will come back April 4th, 2008, for trial on that date. [¶] Is
that the understanding, Mr. Roberts‌

MR. ROBERTS: That’s my understanding. Can I get a representation from Mr. Fletcher
on the record as well that it is his expectation to show up on [April] 4th‌

THE COURT: Here’s what I have to say. I have no jurisdiction on Mr. Fletcher.

MR. ROBERTS: It’s a weird situation.

THE COURT: It’s not weird at all. What I’m saying to you, Mr. Roberts, you, as
attorney of record on this matter, I expect that you will go forward [and] at
his point at least it’s between you and Mr. Fletcher to tell us what happens in
this matter, but as far as the court is concerned, the matter will be in trial
status; so one of the two of you will go forward on that date. April 4th is agreed with the People.”

Rather than
an appearance by Mr. Fletcher on April
4, 2008, and an announcement that he was then ready for trial, a
different series of events transpired.
On April 2, 2008, Bar Panel counsel Jonathan Roberts filed a written
motion, calendared to be heard on the day set for the start of trial (April 4,
2008). The motion requested the court to
continue the start of trial “from the present last day, April 7, 2008, to April 14, 2008,” so that Molina could “be represented by
his counsel of choice[,]” referring to Mr. Fletcher.

On the day
of trial, Friday, April 4, 2008,
Mr. Fletcher did not appear, and, in his absence, the trial court and Bar Panel
counsel Jonathan Roberts engaged in an extended discussion of the latter’s
motion for a continuance of the trial date.
The trial court denied the motion for the following reasons: “I’m perfectly confident with the history of this
trial. [¶] I would not go forward, . . .
if I didn’t feel confident at this point. . . . [T]he
court again has bent over backwards. And
so there is no doubt in the court’s mind that sufficient time has been given
for everybody who is interested in doing this case to proceed. [¶]
And, again, primarily one of the reasons you [Mr. Roberts] happen to be
the attorney that was appointed from ICDA is again the court was concerned with
Mr. Molina’s rights and that fact that Mr. Fletcher voluntarily left the
case. [¶] He was given an option, and he chose to do
something else. And now he apparently
appears on the periphery, but he never makes any formal
commitments. . . . [¶] Again if he were
here right now saying, judge, I’m ready to go, he would be substituted in. He is not.
For that reason, we are going to go forward.”

During the
remainder of the discussion on Friday,
April 4, 2008, Mr. Roberts regularly cited Molina’s right to retain
private counsel of his choosing, and implored the court to accommodate a short
delay in the start of trial. Mr. Roberts
acknowledged that Mr. Fletcher had “become engaged [in another trial] on
Tuesday,” and that the trial was “estimated to last 7 to 10 days,” but added
that it might end “by Wednesday or Tuesday of next
week . . . .” When
the court expressed a concern that Molina’s trial might end up being continued
over-and-over, Mr. Roberts stated that he understood the court’s concern, and
suggested that, because “sometimes [the court got] in a situation [of] waiting
for [Mr. Fletcher],” an alternative to an outright continuance of trial would
be to “consider trailing the case day by day.”
The court rejected the proposal, stating that it did not “think it [was]
something that [was] practical at [that] point.”

On Monday, April 7, 2008, the trial
court, prosecutor, and Bar Panel counsel Jonathan Roberts began voir dire of a
panel of prospective jurors. Mr.
Fletcher did not appear. On Tuesday, April 8, 2008, voir dire
resumed, and concluded during the afternoon session. Mr. Fletcher did not appear. Opening statements began late in the day on Tuesday, April 8, 2008. The People called their first witness on
Wednesday morning, April 9, 2008. The jury returned its verdicts on May 5, 2008.

We are not
persuaded that the trial court abused its discretion in denying Molina’s
request to re-retain Mr. Fletcher as his private counsel. First, the record shows the court provided a
fair opportunity for Mr. Fletcher to substitute in as Molina’s attorney, right
up to the day of trial, but Mr. Fletcher, apparently due to a heavy workload,
was never able to commit to trying Molina’s case on any other schedule than his
own. Second, the record belies a
concrete conclusion that Mr. Fletcher was “ready” to act as Molina’s trial
lawyer. At the time of the first
re-infusion of Mr. Fletcher back into the trial picture, i.e., at the time of
the hearing on February 27, 2008, not only did another lawyer appear on behalf
of Mr. Fletcher to express his interest in subbing back in, which
in-and-of-itself evidences a suggestion that his workload difficulties precluded
him from devoting complete attention to Molina’s case, but that other attorney
also openly stated at that hearing that Mr. Fletcher needed to “refamiliarize”
himself with the case to be ready.
Third, we see nothing definitive in the record from Mr. Fletcher showing that he was “ready” to go to trial in
April 2008, or within any reasonable time thereafter. On the day of trial, Friday, April 4, 2008, Mr. Roberts stated that Mr.
Fletcher had just begun another trial three days earlier. In addition, Mr. Roberts’ motion for a
continuance, filed on April 2, 2008,
and requesting that trial be continued to April 14, 2008, was not supported by a declaration from
Mr. Fletcher stating his readiness. And,
although we see a notation in one minute order to the effect that Mr. Fletcher
had, at some point, indicated he was ready for trial, we do not see an open,
express assertion to that effect from Mr. Fletcher in any of the reporter’s
transcripts. Finally, the trial court expressly
advised Mr. Fletcher that, if he showed up on the day of trial, ready to go,
then the court would allow him to substitute in as Molina’s attorney, “no
doubt.” The interference with Molina’s
right to retain private counsel was not one caused by the trial court, which
stood ready to allow an available attorney to represent Molina at trial.

Molina’s
right to a fair opportunity to retain private counsel is shown to have been
trumped by the countervailing interest in proceeding with his trial in an
orderly fashion, taking into account the practical difficulties of assembling
witnesses, lawyers, and jurors at the same time and at the same place. (People
v. Ortiz (1990) 51 Cal.3d 975, 983-984.)
The record presented to us for review, taken as a whole, strongly
convinces us that the trial court had good reason to be concerned about an
open-ended continuance of Molina’s trial, and, for that reason, we find the
trial court did not abuse its discretion in denying the request to re-retain Mr. Fletcher. (People
v. Crovedi (1966) 65 Cal.2d 199, 207, fn. 4 [“ ‘It is manifest that the
courts cannot in every case await the convenience of some attorney before they
can function. Reduced to its lowest
terms this would allow a popular attorney to have the courts marking time to
serve his [or her] convenience.’ ”].) In
short, we disagree that the trial court failed to take reasonable efforts to
ensure that Molina could be represented by Mr. Fletcher. (People
v. Crovedi, supra, 65 Cal.2d at p. 207.)


II. Consecutive Sentencing

Molina
contends the abstract of judgment must be corrected to conform to the trial
court’s pronounced sentence. More
specifically, Molina argues the abstract of judgment should reflect that the
term on his attempted murder conviction in count 2 should be concurrent, not
consecutive, to the term on his count 1 murder conviction. This result is required, argues Molina,
because the trial
court did not expressly state that the term imposed on count 2 was to be served
consecutively to the term on count 1. We disagree.

Penal Code section 669 prescribes
rules governing concurrent and consecutive terms. In pertinent part, it provides: “When any person is convicted of two or more
crimes . . . [the sentencing court] shall direct whether the terms of imprisonment or any of them to
which he or she is sentenced shall run concurrently or consecutively. . .
. [¶] Upon the failure of the
court to determine how the terms of
imprisonment . . . shall run, the term of
imprisonment . . . shall run concurrently.” (Italics added.) Penal Code section 669 is interpreted to
prescribe this rule: if a sentencing
court fails to pronounce at the time of sentencing that the terms on multiple
convictions are to run consecutively, then the terms are deemed to run concurrently
as a matter of law. (See, e.g., >People v. Downey (2000) 82 Cal.App.4th
899, 912-915; People v. Rogers (1967)
252 Cal.App.2d 1015, 1017-1018.)

At the sentencing hearing, the trial
court pronounced sentence on the murder conviction in count 1, and then stated
that, as to the attempted murders “set forth in counts 2, 3 and 4 of the
information, the defendant is sentenced to the state
prison . . . for the term of 30 years to life as to each
count.” The court then pronounced the
terms on the ancillary findings as to the attempted murder counts, immediately
following which the court stated that the “terms imposed for counts 3 and 4
shall run concurrent with the term imposed for count 2.”

Molina argues the trial court’s
failure to use the specific word “consecutive” when imposing sentence on count
2, means the sentence for that term must be concurrent. The People argue that consecutive terms
may be sustained on appeal where the record establishes that the court
“intended” to impose consecutive terms, relying on People v. Edwards (1981) 117 Cal.App.3d 436, 452. We believe the court’s language is easily
interpreted to show that the court intended to sentence Molina to a consecutive
term on count 2. The court indicated
that the sentences on counts 3 and 4 were to run concurrent to the sentence
imposed on count 2, indicating that the sentence on count 2 was to be handled
in a different manner. The minute order
also reflects the court imposed a consecutive sentence on count 2. Given this state of the record, we believe
the trial court intended a consecutive sentence as to count 2, and reject
Molina’s claim that the word, “consecutive” must be uttered by a trial court to bring such a sentence
into effect.





III. Correction of
Unauthorized Sentence

The abstract of judgment states that Molina’s “total
sentence is 165 years to life.” Molina
contends the abstract of judgment “should be corrected by reducing the number
of years by either 40 or 90 years.” The
People, on the other hand, argue the case should be remanded for a new
sentencing hearing because the sentence imposed on Molina’s firearm allegations
in counts 3 and 4 sentence reflects an “incongruity” which makes for an
unauthorized sentence. We believe
Molina’s argument has merit.

When imposing
sentence for the firearm allegations, the court stated: “[t]he allegation that the defendant
personally discharged a firearm during the commission of said crime within the
meaning of Penal Code section 12022.53 (c), having been found true as set forth
in counts 2, 3, and 4 of the information, the defendant is sentenced to the
state prison for an additional term of 20 years as to each count, such term to
be served consecutive to the terms imposed for counts 2, 3, and 4.”

The
abstract of judgment reflects the trial court sentenced Molina as follows:

Count 1 (murder) 50
years to life, plus 25 years to life for discharging

a
firearm causing death, consecutive to the 50 to life

term;


Count 2 (attempted murder) 30
years to life, consecutive to count 1, plus 20 years

for
discharging a firearm, consecutive to the 30 to life

term;

Count 3 (attempted murder) 30
years to life, concurrent to count 2, plus 20 years

for
discharging a firearm, consecutive to the

concurrent
30 to life term; and

Count 4 (attempted murder) 30
years to life, concurrent to count 2, plus 20 years

for
discharging a firearm, consecutive to the


concurrent
30 to life term.





We agree
with the People’s observation that the trial court’s statements can be
interpreted to have created an incongruity when it affixed consecutive 20-year enhancements to Molina’s convictions on counts
3 and 4, where it had imposed concurrent
terms on those counts. In other words,
it appears to us that one interpretation the trial court’s statements was that
it attempted to affix free-standing punishments on Molina for using a firearm
during the commission of the two attempted murders alleged in counts 3 and 4,
while, at the same time, imposing concurrent terms for the attempted murders
themselves. That is apparently how the
clerk of the court construed the court’s pronounced sentences in preparing the
abstract of judgment.

The law provides that if the
sentence on a count is ordered to be served concurrently, the enhancement
appended thereto must also be served concurrently. (People
v. McFarland (1989) 47 Cal.3d 798, 802, fn. 6; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Given that Molina’s sentence is unauthorized,
it must be corrected.

As we have
found that the aggregate term imposed on count 2 (30 years to life plus 20
years) was properly ordered to run consecutive to count 1, we need not make any
change to the enhancement on that count.
However, we find that the two, “consecutive” 20-year enhancements
imposed on counts 3 and 4 cannot stand on their own. While the enhancements are properly run
consecutive to the sentence imposed on those respective counts, the aggregate
terms are run fully concurrent to the terms in counts 1 and 2, thus reducing
Molina’s sentence by 40 years.

IV. The DNA Testing Fee Must
Be Vacated

Molina
contends, the People agree, and we find that the $20 DNA testing fee must be
stricken because the DNA testing fee statute was not enacted until after Molina
shot at his victims. ( >People v. High (2004) 119 Cal.App.4th
1192, 1195-1199.)









>DISPOSITON

The jury’s verdicts finding defendant Michael Molina
guilty of one count of first degree murder, and three counts of attempted
premeditated murder, along with all of the findings attached to those
convictions, are affirmed. As to the
sentence on the enhancements in counts 3 and 4 for discharging a firearm (Pen.
Code, § 12022.53, subd. (c)), the abstract must be amended so that those terms
are ordered to run concurrent.
The trial court is directed to forward a corrected abstract of
judgment to the Department of Corrections.


NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





BIGELOW,
P. J.

We concur:



RUBIN, J.





LICHTMAN, J.*







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