P. v. Carvajal

















Filed 5/13/13
P. v. Carvajal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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. STEVEN CARVAJAL, Defendant and Appellant.

B243550 (Los Angeles County Super. Ct. No. MA050224)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Bernie C. LaForteza, Judge. Affirmed as modified.



James
Koester, under appointment by the Court of Appeal, for Defendant and Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Victoria B. Wilson, Lance E. Winters and Seth McCutcheon, Deputy Attorneys General, for
Plaintiff and Respondent.



* * *
* * * * * *

Defendant Steven Carvajal was
convicted of several crimes. The trial
court selected the assault with a firearm to serve as the principal term for
defendant’s sentence. In addition to
imposing a term for the substantive offense, the court also imposed a term for
the gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C) for
a violent felony and for the personal use of a firearm under section 12022.5,
subdivision (a).href="#_ftn1"
name="_ftnref1" title="">>[1]> The
sole issue on appeal is whether the court erred in imposing both
enhancements. The Attorney General
concedes error, and we reduce the term of the gang enhancement so that it does
not violate our high court’s holding in People
v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). We also order the abstract of judgment be
modified to reflect defendant’s actual convictions. As modified, we affirm the judgment of
conviction.

>FACTS AND PROCEDURE

Because
defendant raises only a sentencing issue, we describe the facts only briefly (>People v. McNeely (1994) 28 Cal.App.4th
739, 742), interpreting them in the light most favorable to the verdict (>People v. Halvorsen (2007) 42 Cal.4th
379, 419).

Defendant
was a member of the Midtown Criminals street gang. Arturo Gonzalez was a member of a rival gang
and lived next door to L.G.’s mother.

On
August 27, 2010, defendant
and two companions drove by Gonzalez’s home and shouted at Gonzalez, who was
outside. Someone in the car yelled “fuck
cookie monsters,” a derogatory reference to Gonzalez’s gang. Gonzalez fled because he was worried about
being shot. Gonzalez told a deputy
sheriff after the incident that defendant pointed a gun at him but denied that
at trial.

Meanwhile,
L.G., her boyfriend A.H., and others were outside L.G.’s mother’s home when
defendant drove by the home. L.G. saw
defendant get out of a car driven by someone else and shoot a shotgun at least
twice in the direction of L.G. and A.H.
A.H. fled. L.G. recognized
defendant because she had seen him earlier that evening at a gas station, where
he brandished a gun and mentioned his gang name after he mistakenly believed
L.G. spoke to him.

After
the shooting incident, L.G. left her mother’s home but returned later that
night. As she walked to her mother’s
home, she heard rustling. L.G. saw
defendant shoot twice in the direction of her mother’s home. Following the shooting, L.G.’s father’s truck
had bullet holes in it, but her mother’s home was not damaged.

Jurors
found defendant not guilty of shooting at an inhabited dwelling, but guilty of
the lesser offense of shooting a firearm in a grossly negligent manner. Jurors found defendant guilty of shooting at
an unoccupied vehicle and found the gang allegation true with respect to that
offense. Jurors found defendant not
guilty of assault with a firearm on Gonzalez but guilty of assault with a
firearm on L.G. and A.H. With respect to
that offense, jurors found the gang enhancement (§ 186.22, subd. (b)(1)(C)) and
personal use of a firearm (§ 12022.5, subd. (a)) true.

The
trial court sentenced defendant to the high term of four years for assault with
a firearm. With respect to that
substantive crime, the court imposed a 10-year enhancement for the personal use
of a firearm and a 10-year enhancement for the gang enhancement. For shooting at an unoccupied vehicle, the
court sentenced defendant to eight months for the substantive crime and one
year for the gang enhancement. The court
imposed and stayed sentence for shooting a firearm in a grossly negligent
manner, applying section 654.

>DISCUSSION

>Rodriguez, supra, 47 Cal.4th 501 is dispositive of this case as both parties
recognize. In Rodriguez, the California Supreme Court held the trial court could
not impose enhancements under both section 12022.5, subdivision (a) for
personal use of a firearm and section 186.22, subdivision (b)(1)(C) for a
violent felony committed to benefit a street gang. (Rodriguez,
at p. 504.) The court reasoned that
section 1170.1, subdivision (f) prohibited such a result. That statute provides: “When two or more enhancements may be imposed
for being armed with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those enhancements shall
be imposed for that offense. This
subdivision shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great bodily
injury.” The high court rejected the
Attorney General’s argument that the gang enhancement was not a firearm
enhancement because the punishment exceeded a regular gang enhancement only
because the defendant used a firearm. (>Rodriguez, at p. 509.) The court explained: “defendant became eligible for this 10-year
punishment only because he ‘use[d] a
firearm which use [was] charged and proved as provided in . . . Section
12022.5.’ [Citation.]” (Ibid.)

Based on> Rodriguez, the Attorney General
concedes the court erred in imposing both a 10-year enhancement under section
12022.5, subdivision (a), and another 10-year enhancement under section 186.22,
subdivision (b)(1)(C). The Attorney
General argues this court may reduce the gang enhancement from 10 years under
section 186.22, subdivision (b)(1)(C) to five years under subdivision
(b)(1)(B), which mandates a five-year enhancement for serious felonies
committed for the benefit of, at the direction of, or in association with a
gang. In contrast to the 10-year
enhancement for a violent felony, which depends on defendant’s use of a
firearm, the five-year enhancement is based on the substantive crime, not
because personal use of a firearm was charged and proved under section 12022.5. (§ 1192.7, subd. (c)(1), criteria (31).)

Defendant
does not dispute assault with a deadly weapon constitutes a serious
felony. Nor does he dispute this court
can reduce the degree of the enhancement or that the five-year enhancement is
based on defendant’s use of a firearm.
But instead, defendant argues imposition of both the personal use
enhancement and the gang enhancements violates section 654. That statute provides in pertinent part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision.” (>Id., subd.
(a).)

We
conclude the imposition of the personal use enhancement and the gang
enhancement does not violate section 654.
In People v. Ahmed (2011) 53
Cal.4th 156, 163-164 (Ahmed), our
high court explained that if the specific statutes fail to supply an answer to
whether multiple enhancements may apply, a court should consider section
654. When section 654 is applicable in
the context of multiple enhancements, it “bars multiple punishment for the same
aspect of a href="http://www.mcmillanlaw.com/">criminal act.” (Ahmed,
at p. 164.) Unlike a substantive
offense, an enhancement does not define a criminal act but instead focuses on
aspects of that act. (>Ahmed, at p. 163.) “But
enhancement provisions do not define criminal acts; rather, they increase the
punishment for those acts. They focus on
aspects of the criminal act that are
not always present and that warrant additional punishment.” (Ibid.) “Sometimes separate enhancements focus on
different aspects of the criminal act.”
(Ibid.)

Assuming
that section 654 is applicable as defendant argues, defendant’s personal use of
a firearm was an aspect of the assault and defendant’s acting for the benefit
of, at the direction of, or in association with a gang was a separate aspect of
the assault. The personal use of a
firearm punishes firearm use whereas the gang enhancement punishes gang-related
conduct. The two enhancements concern
different aspects of a criminal act. Neither is always present and both warrant
additional punishment. Therefore,
imposition of both is not barred under section 654, and the gang enhancement
should be reduced from 10 years (for a violent felony) to five years (for a
serious felony).href="#_ftn2" name="_ftnref2"
title="">>[2]

Finally,
defendant argues, the Attorney General concedes, and we agree the abstract of
judgment should be amended to reflect a conviction for shooting a firearm in a
grossly negligent manner for count 1 (§ 246.3) and for shooting at an
unoccupied vehicle in count 2 (§ 247, subd. (b).) The abstract of judgment incorrectly states
defendant was convicted of shooting at an inhabited dwelling and provides the
incorrect citation for shooting at an unoccupied vehicle.href="#_ftn3" name="_ftnref3" title="">>[3]>

>DISPOSITION

The
judgment is modified to reflect a five-year gang enhancement under
section 186.22, subdivision (b)(1)(B).
The abstract of judgment shall be modified to reflect a conviction for
shooting a firearm in a grossly negligent manner (§ 246.3) and shooting at
an unoccupied vehicle (§ 247, subd. (b)).
In all other respects, the judgment is affirmed.



FLIER,
J.



We concur:



BIGELOW,
P. J.





RUBIN,
J.