P. v. Flores
Filed 4/25/13 P. v. Flores
CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. ALVARO FLORES, Defendant and Appellant. | G046476 (Super. Ct. No. 06NF1325) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, Carla Singer, Judge.
Affirmed as modified.
Rex Williams, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Annie Featherman Fraser and Heidi T.
Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant
Alvaro Flores was convicted of assault
with a firearm and participating in a criminal
street gang (Pen. Code §§ 245, subd. (a)(2), 186.22, subd. (a))
in relation to a shooting that occurred outside a home where a party was taking
place. On appeal, he argues the sentence
on the gang count should have been stayed pursuant to section 654. The Attorney General concedes the point, and
we concur.
I
FACTS
Due
to the posture of the case and the sole issue on appeal, we need not delve into
the facts of this case too deeply. At a
birthday party in 2005, a shooting took place outside the home where the party
was taking place. A number of people
were shot at and several were hit by gunfire.
Victor Ortiz, who had apparently been invited to the party, had brought
defendant with him. Ortiz heard several
gunshots and saw defendant fire a gun from the vehicle in which they were
leaving the scene.
When
the police arrived, a witness described the man who had fired the gun from the
car. Another witness said “I think this
is him,†when he saw defendant’s picture in a photo array. About a week after the shooting, defendant
told another witness he had shot out of the car and thought he had shot a
man. He asked this witness not to say
anything if the police spoke to her.
Defendant
was charged with attempted premeditated
murder (§§ 664, 187, subd. (a); count one), participation in a criminal
street gang (186.22, subd. (a), count two), assault with a firearm (§ 245,
subd. (a)(2), count three), and shooting from a motor vehicle (former § 12034,
subd. (c), now § 26100, subd. (c), count four). A number of
enhancements were also alleged,
including that counts one, three and four were committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)) and that defendant personally
used a firearm while committing counts one and three (§ 12022.5, subd. (a)).
During
trial, a gang expert testified that defendant, along with a number of others of
those present during the relevant events, were members of Hard Times, a
criminal street gang. The expert also
testified, when asked about a hypothetical mirroring the facts of this case,
that the offenses which occurred at the party were committed for the benefit of
and promoted the criminal conduct of the gang.
The
jury was unable to reach a verdict on counts one and four, and a mistrial was
declared as to those counts. The jury
found defendant guilty of counts two and three, and found both enhancements on
count three true. Defendant was
sentenced, in due course, to the middle term of three years on count three,
plus 10 years for the gang enhancement and four years for the gun enhancement,
for a total term of 17 years. The court
imposed a concurrent sentence of two years on count two.
II
DISCUSSION
Defendant
argues that he was found guilty of and sentenced separately for counts two and
three. In count two, he was convicted of
the substantive crime of participating in a criminal street gang, while in
count three, he was convicted of assault with a firearm for the benefit of the
gang. Defendant contends that no
evidence demonstrated that counts two and three were committed with separate
intents, and therefore the sentence on count two should have been stayed
pursuant to section 654. The Attorney
General concurs, as do we.
Section
654, subdivision (a) states: “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.†Section
654 therefore bars multiple punishment when a defendant is convicted of two or
more offenses that are incident to one objective. (Neal
v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993)
5 Cal.4th 1203 [reaffirming Neal].)
“[Section
186.22, subd. (a)] has three elements:
(1) ‘[a]ctive participation in a criminal street gang, in the sense of
participation that is more than nominal or passive,’ (2) ‘“knowledge that [the
gang’s] members engage in or have engaged in a pattern of criminal gang
activity,â€â€™ and (3) ‘the person “willfully promotes, furthers, or assists in
any felonious criminal conduct by
members of that gang.†[Citation.]’ [Citation.]â€
(People v.
Cal.4th 191, 197 (Mesa).)
In
Mesa,
the California Supreme Court held that section 654 precludes punishment for the
substantive gang crime (§ 186.22, subd. (a)) when a defendant is independently
punished for the offense that satisfies the third element of the gang
crime. (Mesa, supra, 54 Cal.4th
at pp. 197-198.) Thus, section 654
precludes defendant’s sentence for both assault with a firearm and the
substantive gang crime because the assault is the crime that constitutes the
willful promotion, furtherance or assistance in gang members’s felonious
conduct. According to
defendant’s sentence on count two should have been stayed pursuant to section
654 rather than being subject to a concurrent, sentence.
As
to the nature of the remedy, neither party requests resentencing, but simply a
modification of the judgment. We agree a
modification is appropriate in this case.
III
DISPOSITION
The
sentence on count two is ordered stayed pursuant to section 654. The clerk of the court is ordered to correct
the abstract of judgment and send a copy to the
affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
RYLAARSDAM, J.
name="_ftn1" title="">[1]
Subsequent statutory references are to the Penal Code.
