P. v. Caldera
Filed 5/20/13 P. v. Caldera CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
>
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CALDERA, Defendant and Appellant. | B240071 (Los Angeles County Super. Ct. No. BA301745) |
APPEAL from
a judgment of the Superior Court
of
County. Lance I. Ito, Judge. Reversed in part, affirmed in part, and
remanded.
Deborah L. Hawkins, 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, Zee Rodriguez and Timothy M.
Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Armando Caldera appeals from his conviction of
three counts of special circumstance first
degree murder, attempted premeditated murder, conspiracy to commit murder and
unlawful taking of a motor vehicle.
(1) an incorrect jury instruction denied him a fair trial and due
process; (2) it was prejudicial error to admit certain evidence;
(3) imposition of a Penal Code section 186.22, subdivision (b)(1)(C)
enhancement on each of the three murder convictions was error; and (4) the abstract of judgment
does not correctly reflect the sentence imposed by the trial court.
(b)(1)(C) enhancements on each of the three murder convictions and order the
abstract of judgment modified to accurately reflect the sentence imposed by the
trial court. In all other respects, we
affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Viewed in accordance with the usual
rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence established that in the summer of
2005, defendant, Ever, Angel Martinez and “Gonzo,†were members of the East Los
Angeles criminal street gang known as Lil Valley (LV). LV’s
rival gangs included the Laguna Park Vikings (LPV), King Kobras (KK) and Krazy
Ass Mexicans (KAM). Murder victim Javier
Castro was affiliated with KAM and murder victim Jovan Campos was affiliated
with LPV. Murder victim Sergio Garrido
and attempted murder victim Raul T. were not gang members.
name="_ftnref3" title="">[3] The territory claimed by LV
included the 400 block of Downey Road,
where Javier and Sergio were killed on July 3.
LPV claimed as its territory the 4000 block of Verona
Street, where Jovan was killed and Raul wounded on
August 10.
Javier
Castro and Sergio Garrido Murders
Javier and Sergio lived next door
to one another in the 400 block of Downey Road,
respectively. Their front yards were
separated by a short cinder block wall, and a short chain link fence separated
Javier’s property from the sidewalk.
About a week before Javier and Sergio were fatally shot in their
respective front yards on July 3, 2005,
defendant and a taller man approached Javier and his pregnant girlfriend,
Violeta G., as they were walking home.
Javier identified defendant to Violeta, as “Little Malo from Lil
Valley.†In response to defendant’s inquiry, Javier
denied any gang affiliation. As
defendant’s companion lifted Javier’s shirt looking for gang tattoos, Javier
said, “Come on, man, we live just right here.â€
Stating he did not care where they lived, defendant lifted up his shirt
and put his hand on a gun tucked in his waistband. Violeta thought defendant was going to kill
them, but defendant’s companion told him not to do anything because Javier was
with his pregnant girlfriend. Before
walking away, defendant warned Javier, “I better not catch you slippn’ in my
varrio.â€
The confrontation was witnessed by
Sergio’s cousin Byron G., who was next door visiting. Byron could not hear what was being said, but
from the body language of the participants he was afraid there was going to be
a shooting.
At about 9:20 p.m. on July 3, Javier and Sergio were in their front
yards talking to one another over the cinder block wall. When Sergio’s mother, Petrona M., walked out
onto the front porch to see if the taxi she was waiting for had arrived, she
saw a tall, skinny masked man with his hand on a gun in his waistband staring
at Sergio; the man took a few steps up the driveway and shot Sergio in the
head, then fired at Sergio three more times.
Petrona did not see a second man or anything happen to Javier.
Just before the shooting, Byron had
been resting with his eyes closed in his truck parked in the driveway. Hearing gunshots, Byron opened his eyes and
looked towards the sound. He saw Sergio
standing in the front yard and the taller of two masked men fire a gun multiple
times at Sergio. Although he could not
see their faces, from their build Byron recognized the two masked men as the
same two men he had seen arguing with Javier and Violeta the week before. From a photographic lineup, Byron identified
defendant as one of the two men he saw confront Javier and Violeta the week
before the shooting.
name="_ftnref4" title="">[4]
The night of the shooting, Javier’s
girlfriend, Violeta was in her bedroom while Javier was outside talking to
Sergio. At about 9:30 p.m., the sound of
gunshots drew Violeta to the window. She
saw Javier lying on the ground and the shorter of two men on the sidewalk side
of the fence holding a gun. As Violeta
ran out the front door toward Javier, she saw the shorter man lean over the
fence and point the gun at Javier’s head.
Violeta said, “Please don’t shoot him.â€
Ignoring her plea, the man fired once and said, “This is for Lil Valley
Puto.†Violeta dropped onto the ground
next to Javier. Looking up at the masked
shooter, Violeta immediately recognized defendant by a scar on his
eyebrow. Violeta identified defendant as
the shooter from a photographic lineup.
At trial, Violeta positively confirmed her identification. She thought defendant’s taller companion at
the time of the shooting was the same person she had seen with him during the
confrontation a few days before, but she was not sure.
On August 14, 2005, a deputy
sheriff searching a Honda parked in LV gang member Ever’s carport, with Ever
nearby, found a loaded Taurus model .357 magnum revolver in the trunk. Forensic analysis determined that this gun
fired bullets recovered from Sergio’s and Javier’s bodies.
Defendant admitted to police having
a confrontation with a KAM gang member and his pregnant girlfriend on Downey
Road, but denied shooting anyone.
Jovan
Campos Murder and Raul T. Attempted Murder
About a month after Sergio and
Javier were murdered, on August 10, 2005, at 3:00 p.m., Raul was walking
home from Salazar Park where he had been playing basketball when he encountered
his friend, Jovan. As they were walking
together, Jovan suddenly pushed Raul and told him to run. Raul was running and hopping fences when he
heard shots fired. Jovan was shot six
times and died in a driveway at the 4000 block of Verona Street. Raul was shot twice; he never looked back to
see who was shooting.
Laura M. stole cars for LV, which
she knew were being used in driveby shootings.
Laura occasionally saw defendant driving cars she had stolen. A few days before the shooting, Laura stole
Celeste S.’s gold Honda from in front of Celeste’s home. The morning of the shooting, Celeste’s
sister, Esther S., saw the car parked on the street not far from their
home. When defendant and another
Hispanic man started to get into the car, Esther confronted defendant and
demanded he give the car back. Defendant
told Esther to shut up and when she persisted he would “take care†of her,
which Esther understood as a threat.
Defendant and his companion drove away in the stolen Honda. From a photographic lineup, Esther identified
defendant as the person she saw drive away in the stolen Honda. She confirmed her identification at
defendant’s preliminary hearing, but was unable to identify defendant at trial.
At the time
of the shooting, Tiffany C. was working in her front yard when she heard what
she thought were fireworks. Walking
towards the street, Tiffany saw defendant get out of the front passenger seat
of a silver or cream colored Honda parked in the middle of Verona Street. Defendant ran down the street holding a black
semiautomatic firearm and jumped a fence into a driveway at the 4000 block of
Verona Street. Hearing two gunshots,
Tiffany crouched down. When she got back
up, Tiffany saw defendant run back to the car and the car speed away. Although defendant had been wearing dark
sunglasses, Tiffany could clearly see his face from the nose down. Tiffany identified defendant as the person
she saw running with a gun from a photographic lineup. She also identified defendant at his preliminary
hearing and at trial. Tiffany was
confident of her identification.
After school on the day Jovan and
Raul were shot, Laura recalled hearing helicopters circling overhead while she
was sitting on an apartment building porch with some friends. When LV gang member Ever rode up on a
bicycle, Laura asked him if he knew what was going on. Ever smirked and said, “Just watch the news,
you’ll find out.â€
Police found multiple ejected
.40-caliber shell casings at the scene of the shooting. All of the casings had been fired from the
same weapon but no .40-caliber weapon was ever found. One of several bullets recovered from Jovan’s
body was also fired from a .40-caliber weapon but it was not possible to
determine whether it had been fired from the same weapon that had fired the
casings. In addition to the .40-caliber
bullet, a .357-caliber bullet was recovered from Jovan’s body. It was determined that this bullet, like the
bullets recovered from Javier’s and Sergio’s bodies, was fired from the .357
magnum recovered by police from the trunk of the Honda parked in Ever’s
carport.
Conspiracy
to Commit Murder
Sometime in August 2005, Laura (the
car thief) was at Ever’s house with defendant and Angel when she heard them
talking about “regulating Laguna Park,†which Laura understood to mean
“payback.†At the time, Angel was
holding a revolver and Laura saw a shotgun in the room. On August 16, Laura drove defendant, Angel
and a third person, Patricia, to the Big 5 in East Los Angeles in a stolen car
for the purpose of buying ammunition.
Laura waited in the car while the other three went into the store. When they came out, Angel was holding a bag
of ammunition which he placed under the driver’s seat. No one told Laura what they intended to do
with the ammunition, but she deduced that it was going to be used to “regulateâ€
Laguna Park. Laura dropped defendant and
Angel off at Gonzo’s house and then went with Patricia to buy food and alcohol
to bring back to the house. On the way
back, police stopped Laura for a traffic violation. She was taken into custody after they found
one box of .357-caliber ammunition and one box of .40-caliber ammunition in a
Big 5 bag under the driver’s seat. One
bullet was missing from the box of fifty .357-caliber bullets.
Patricia testified she made the
actual purchase with money given to her by Angel, who told Patricia they were
going to go hunting.
Defendant admitted to the police
that he went to Big 5 with Patricia and Angel, but denied the ammunition was
his.
DISCUSSION
The Trial
Court Correctly Instructed on Aiding and Abetting
Without objection, the trial court
gave CALJIC No. 3.00, which reads:
“Persons who are involved in committing a crime are referred to as
principals of that crime. Each principal,
regardless of the extent or manner of
participation is equally guilty.
Principals include:
1. Those who directly and actively commit the act
constituting the crime, or 2. Those who aid and abet the commission
of the crime.†(Italics added.) Defendant contends the italicized language is
incorrect because an aider and abettor “is not ‘equally guilty’ but has a
separate mens rea from that of the direct perpetrator.†We agree with the People that defendant’s
failure to object to the challenged instruction constitutes a forfeiture of the
claim. Even if defendant had preserved
his claim, we would find no error. And
even assuming error, we would find no prejudice.
1.
Forfeiture
“[A]s a general proposition and in
most cases, CALJIC No. 3.00 is a correct statement of the law.†(People
v. Mejia (2012) 211 Cal.App.4th 586, 624 (Mejia).) For this reason, a
defendant who neither objects or requests clarification or modification of the
“equally guilty†language in CALJIC No. 3.00, has forfeited his or her
claim of error. (Mejia, at p. 624; see also People
v. Canizalez (2011) 197 Cal.App.4th 832, 849 (Canizalez) [failure to object to “equally guilty†language in the
2009 version of CALCRIM No. 400, the analogue to CALJIC No. 3.00,
constitutes forfeiture of the claim].)
Here, without objection or request
for clarification of the “equally guilty†language, the trial court gave CALJIC No. 3.00 (principals
defined), as well as CALJIC Nos. 3.01 (aiding and abetting defined) and 3.02
(liability for natural and probable consequences).
Under Mejia and Canizalez,
defendant has forfeited this claim of error.
2.
No Error in Giving CALJIC No. 3.00
Even if defendant had preserved his
contention for appeal, we would find no error.
A trial court has a sua sponte duty to instruct on the general principles
which are closely and openly connected with the facts. We review de novo a claim that the trial
court failed to do so. (
at p. 850.)
In People v. McCoy (2001) 25 Cal.4th 1111, 1122 (McCoy), our Supreme Court held that one who aids and abets a
killing may be found guilty of a greater offense than the direct
perpetrator. In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 (
“leads inexorably to the further conclusion that an aider and abettor’s guilt
may also be less than the perpetrator’s, if the aider and abettor has a less
culpable mental state.†Therefore, the
instruction that an aider and abettor is “equally
guilty†of the crime of which the perpetrator is guilty, “while generally
correct in all but the most exceptional circumstances, is misleading here and
should have been modified.†(
[finding error harmless under Chapman
standard].)
title="">
In Mejia, supra,
211 Cal.App.4th at page 622, the court rejected a claim that, under
allowed the jury to convict the defendants of murder and attempted murder
without first finding that each defendant acted with the requisite mens
rea. In that case, Lorenzo was fatally
shot as he and four fellow gang members (the four defendants) tried to break
into the home of a rival gang member. The
four defendants were convicted of Lorenzo’s provocative act first degree murder
and the attempted premeditated murder of the rival gang member into whose home
they were trying to break. The court
explained that by also giving CALJIC No. 3.01,
“the trial court effectively told the jury that to find appellants guilty, each
must have been aware of Lorenzo’s
unlawful purpose and, through act or advice, intentionally promoted the accomplishment of that purpose. This instruction advised the jury it must
base its decision of each appellant’s liability not simply on the mental state
of the direct perpetrator of the crime, but on that appellant’s state of mind
and the extent to which he knew of and intended to facilitate the purpose
contemplated by the perpetrator.†(
showed that all four defendants and Lorenzo went to the location to kill the
rival gang member and there was no evidence that any of them harbored a
different state of mind. (
Here, as in Mejia, the trial court gave CALJIC No. 3.01. The evidence was overwhelming that defendant
and the other gunmen harbored the same intent – to shoot and kill rival gang
members. There was no evidence from
which it could reasonably be inferred that defendant harbored any different
intent. Under these circumstances,
CALJIC No. 3.01 adequately clarified any ambiguity in CALJIC
No. 3.00.
title="">[10]
We are not
persuaded otherwise by defendant’s argument that the testimony of Petrona
(Sergio’s mother) supports a finding that Javier’s murder was an afterthought
and therefore that defendant aided and abetted the first degree murder of
Sergio, but only aided and abetted the second degree murder of Javier. Petrona testified she saw a thin masked man,
between 5’8†and 5’10†tall, shoot Sergio four times. She did not see anyone else with the shooter
and did not see what happened to Javier.
The deputy sheriff who interviewed Petrona the night of the shooting
testified Petrona told him she saw masked man, between 5’8†and 5’10†tall,
fire four times at Sergio, then flee north and fire two or three shots at
Javier. Whether Petrona was or was not
mistaken about the identity of the shooter, nothing in her testimony or her
statement to the deputy at the scene supports a finding that either killing was
anything other than willful, deliberate and premeditated.
3.
Harmless Error
Even assuming CALJIC No. 3.00
was misleading under the circumstances of this case, which we do not believe it
was, any error in giving it was harmless beyond a reasonable doubt given the
overwhelming evidence defendant’s intent was to shoot and kill rival gang
members. (Mejia, supra, 211 Cal.App.4th at p. 625.)
No
Abuse of Discretion in Admitting Challenged Evidence
Defendant contends it was an abuse
of discretion for the trial court to allow the prosecutor to introduce into
evidence, over defense objection, (1) a photograph taken by police of defendant
wearing a black beanie found in the search of Ever’s residence and (2) an
LV tattoo defendant obtained five years after the murders occurred. He argues this evidence was irrelevant and
more prejudicial than probative under Evidence Code section 352. We disagree.
With certain statutory exceptions,
all relevant evidence is admissible.
(Evid. Code, § 351.)
“ ‘Relevant evidence’ means evidence. . . having any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.†(§ 210.)
The test is whether the evidence tends “ ‘ “logically, naturally, and by
reasonable inference†’ †to establish material facts. (People
v. Fields (2009) 175 Cal.App.4th 1001, 1016.) Circumstantial evidence is evidence from
which a fact may be inferred. (
228 Cal.App.3d 447, 451.) “An
inference is a deduction of fact that may logically and reasonably be drawn
from another fact or group of facts found or otherwise established in the
action.†(§ 600, subd. (b).)
However, even relevant evidence may
be excluded if its probative value is substantially outweighed by concerns of
undue prejudice. (Evid. Code,
§ 352.) “ ‘ “Evidence is not
prejudicial, as that term is used in a section 352 context, merely because it
undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence
relevant . . . .
‘ “The ‘prejudice’ referred to in . . . section 352 applies to
evidence which uniquely tends to evoke an emotional bias against [a party] as
an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not
synonymous with ‘damaging.’ †. . .’
. . . [¶] The prejudice that section 352 ‘ “is
designed to avoid is not the prejudice or damage to [a theory of prosecution or
defense] that naturally flows from relevant, highly probative evidence.†. . .
“Rather, the statute uses the word in its etymological sense of ‘prejudging’ a
person or cause on the basis of extraneous factors. . . .†. . .’ . . . In other words, evidence should be excluded
as unduly prejudicial when it is of such nature as to inflame the emotions of
the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of
the jurors’ emotional reaction. In such
a circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose.†. . .’ . .
.†(People
v. Scott (2011) 52 Cal.4th 452, 490-491 (Scott), citations omitted.)
We review a trial court’s ruling on
the admissibility of evidence, including under Evidence Code section 352, for
abuse of discretion. (
1.
The LV Tattoo
In
438 (disapproved on another ground in People
v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14), our Supreme Court
held the fact the defendant had “187†tattooed on his forehead after the
charged murder was committed, was admissible because it “represented an
admission of defendant’s conduct and a manifestation of his consciousness of
guilt.â€
Here, defendant objected to
admission of a photograph of the left side of defendant’s face showing an “LVâ€
tattoo that defendant obtained several years after the charged crimes. He argued there was extensive evidence of
defendant’s gang membership at the time of the charged crimes and the fact he
got a gang tattoo five years later was not probative. The trial court overruled the objection,
reasoning evidence of defendant’s continued commitment to the gang was relevant
to the gang special circumstances and gang enhancement. We find no abuse of discretion. The fact defendant had LV tattooed on the
side of his face five years after the charged crimes occurred is circumstantial
evidence having a tendency in reason to show the level of his commitment to the
gang, which in turn shows motive for the murders and attempted murder. It is also probative of the gang special
circumstance and gang enhancements. Nor
was evidence of the LV tattoo particularly inflammatory. Under these circumstances, it was not an
abuse of discretion to admit this evidence.
2.
Photograph of Defendant Wearing a Ski Mask
In June 2005 – one month before the
murders – deputies executing a search warrant at Ever’s home encountered
defendant wearing a black ski mask as a beanie.
In addition to photographing defendant’s tattoos, the police directed defendant
to pull down the beanie over his face so that it served as a ski mask and
photographed defendant wearing the ski mask in this fashion. Although police confiscated the ski mask, it
was subsequently destroyed because it was not relevant to the unrelated case
against Ever in which it was confiscated.
Defendant sought to exclude the photograph on relevance and Evidence
Code section 352 grounds because the ski mask was not the one defendant
was alleged to have been wearing at the time of the charged crimes. The prosecutor countered the photograph was
relevant to show the scar on defendant’s eyebrow was visible through the eye
hole of a generic ski mask. The trial
court admitted the photograph, reasoning:
“It’s relevant for two reasons:
one, people don’t normally wear beanie caps in July because of the
weather; and, two, it does show he has knowledge of a ski mask. You don’t ‑‑ by beanie, ski mask,
I mean, mistaking it as a ski mask or vice versa. [¶]
Also, it does show the eyes ‑‑ eye opening of the particular
ski mask would show. So I find under
[section] 352 that its probative value is substantial.†We find no error.
Violeta testified she recognized
defendant through the ski mask because she could see the scar on his
eyebrow. Thus, whether defendant’s
eyebrow scar was visible through the eyehole of a ski mask was relevant to the
issue of identification. There was no
evidence that either the ski mask the shooter was wearing or the ski mask
defendant was wearing in the photograph were unique in any way that would
suggest the photograph was not probative of how defendant’s eyes would look in
a generic ski mask. Under these
circumstances, it was not an abuse of discretion to admit the photograph into
evidence. Nor is there anything unduly
prejudicial about the photograph. For
these reasons, it was not an abuse of discretion to admit this evidence.
Sentencing
Errors
1.
Counts 1, 2 and 3
On each of the three murder
convictions (counts 1, 2 & 3), defendant was sentenced to consecutive terms of life in
prison without the possibility of parole for special circumstance murder, plus
a consecutive 25 years to life for the section 12022.53, subdivision (d)
firearm enhancement, plus a consecutive 10 years for the section 186.22,
subdivision (b)(1)(C) gang enhancement. Defendant
contends it was error to impose the 10-year enhancements because
section 186.22, subdivision (b)(1)(C) is inapplicable to a term of life
without the possibility of parole. We
agree.
Section 186.22, subdivision
(a) establishes a substantive offense for participation in a criminal street
gang. Subdivision (b)(1) of that section
establishes enhancements for commission of a crime for the benefit of a
criminal street gang “[e]xcept as provided in paragraphs (4) and (5).†Paragraphs (4) and (5) of
section 186.22, subdivision (b) provide alternate penalties, not
enhancements, for specified crimes committed for the benefit of a criminal
street gang. (See People v. Campos (2011) 196 Cal.App.4th 438, 448
[§ 186.22, subd. (b)(5) is an alternate penalty, not an
enhancement].) Section 186.22,
subdivision (b)(5) reads: “Except as
provided in paragraph (4) [enumerating specified crimes], any person who
violates this subdivision in the
commission of a felony punishable by imprisonment in the state prison for life
shall not be paroled until a minimum of 15 calendar years have been
served.†(Italics added.)
In People v. Lopez (2005) 34 Cal.4th 1002, 1004 (
section 186.22, subdivision (b)(1)(C) enhancement cannot be imposed on a
felony that is punishable by life in prison.
Instead, section 186.22, subdivision (b)(5) applies to such a felon
because that paragraph expressly applies to “any person who violates this subdivision in the commission of a
felony punishable by imprisonment in the state prison for life
. . . .†(Italics
added.) The Lopez court rejected any distinction between straight life terms
(i.e., seven years of incarceration before parole eligibility (§ 3046))
and terms of years to life. (
it will have no practicable effect, such as where an underlying first degree
murder conviction has a minimum parole eligibility of 25 years, greater than
the 15 years prescribed by section 186.22, subdivision (b)(5). (Lopez,
at pp. 1008-1009.) We can
discern no reason to apply a different rule when the underlying offense is
punishable by life without possibility of parole.
In examining the legislative
history of section 186.22, the Lopez
court commented that the predecessor to section 186.22,
subdivision (b)(5) (i.e., former § 186.22, subd. (b)(3)) was
understood to apply to all lifers, “except
those sentenced to life without the possibility of parole. . . . †(Lopez,
supra, 34 Cal.4th at p. 1010, italics added.) Relying on this dicta in Lopez, the People argue
that the section 186.22, subdivision (b)(5) does not apply to those
sentenced to life without the possibility of parole; rather, the
section 186.22, subdivision (b)(1)(C) 10-year enhancement should apply to
that sentence. But since the defendant
in Lopez had been sentenced to 25
years to life for murder, the court was not called upon to rule on the
applicability of section 186.22, subdivision (b)(1) and (5) to a term of
life without the possibility of parole.
Since Lopez, no published case
has addressed the issue. Given the clear
language of the statute, we conclude the 10-year enhancement does not apply.
Because defendant was sentenced to
life without the possibility of parole on each of the three special
circumstance murder convictions, the section 186.22, subdivision (b)(1)(C)
enhancement is inapplicable. We
therefore strike those enhancements.
2.
Count 4
For attempted premeditated murder (count 4) defendant
was sentenced to 15 years to life in prison, plus a consecutive 25 years to
life pursuant to section 12022.53, subdivision (d), to run consecutively
to the life terms imposed on the murder convictions (counts 1, 2 & 3). The abstract of judgment correctly reflects
the 15-year-to-life term and the section 12022.53, subdivision (d)
enhancement, but incorrectly reflects imposition of a 10-year
section 186.22, subdivision (b)(1)(C) enhancement. The parties agree that the abstract of
judgment should be corrected to reflect the sentence actually imposed by the
trial court. We agree and order the
abstract corrected.
The 10-year
section 186.22, subdivision (b)(1)(C) enhancements for counts 1, 2 and 3
are stricken. The matter is remanded to
the trial court with directions to prepare an amended abstract of judgment to
reflect this modification and to correctly reflect the sentence imposed on
count 4 by deleting the section 186.22, subdivision (b)(1)(C)
enhancement. The trial court shall forward
to the Department of Corrections and
Rehabilitation a certified copy of the amended abstract of judgment. In all other respects, the judgment is
affirmed.
RUBIN,
ACTING P. J.
WE CONCUR:
FLIER,
J.
GRIMES,
J.
was charged by second amended information with three counts of special
circumstance first degree murder (counts 1, 2 & 3) and attempted
premeditated murder (count 4); he was jointly charged with Ever Starling
Oropeza with conspiracy to commit murder (count 5) and unlawful driving of a
motor vehicle (count 6); firearm use (§ 12022.53, subds. (b), (c), (d)
& (e)(1)) and gang enhancements (§ 186.22, subd. (b)(1)(C)) were
also alleged. Following a separate jury
trial, defendant was convicted as charged.
He was sentenced to multiple life terms, the details of which we set out
in the body of the opinion. Defendant
timely appealed.
future undesignated statutory references are to the Penal Code unless otherwise
noted.
