P. v. Gutierrez
Filed 1/28/13 P. v. Gutierrez CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN GUTIERREZ,
Defendant and Appellant.
B238329
(Los Angeles County
Super. Ct. No. TA116464)
APPEAL from
a judgment of the Superior Court of
County. Paul A. Bacigalupo,
Judge. Affirmed and remanded with
directions.
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,
Lance E. Winters, Senior Assistant Attorney General, and Lawrence M. Daniels
and Rene Judkiewicz, DeputyAttorneys General, for Plaintiff and
Respondent.
_______________________
Appellant Jonathan Gutierrez
appeals from the judgment entered following his conviction of three counts of
enhancements alleged as to each count (§ 186.22, subd. (b)(1)). On appeal, Gutierrez argues that the evidence
was insufficient to support the jury’s findings that each of the robberies
was committed for the benefit of, at the direction of, or in association with a
gang, and with the specific intent to promote, further, or assist in criminal
conduct by gang members. Gutierrez also
asserts that the trial court erred in imposing an additional term on a personal
use of a firearm enhancement alleged as to one of the robbery counts when the
jury specifically found that enhancement allegation to be not true. We remand the matter to the trial court for
resentencing, but otherwise affirm.
FACTUAL
BACKGROUND AND PROCEDURAL HISTORY
I.
Charged Crimes
In an amended
information, the Los Angeles County District Attorney charged Gutierrez with
the second degree robberies of Juan Parada (count 1), John Liu (count 2), and
Matias Sanchez (count 3). As to count 1,
it was alleged that Gutierrez personally inflicted great bodily
commission of the robbery (§ 12022.7, subd. (a)). As to count 2, it was alleged that Gutierrez
committed the robbery of Liu against a victim who was over the age of 60 (§
1203.09, subd. (f)). As to counts 2 and
3, it was alleged that a principal was armed with and personally used a firearm
during the commission of the robberies of Liu and Sanchez (§§ 12022, subd.
(a)(1), 12022.53, subds. (b), (e)(1)).
As to all three counts, it was alleged that the offense was committed for
the benefit of, at the direction of, or in association with a criminal street
gang, and with the specific intent to promote, further, or assist in criminal
conduct by gang members (§ 186.22, subd. (b)(1)). Gutierrez pleaded not guilty to each count
and denied the enhancement allegations.
Prior to trial, the court granted Gutierrez’s motion to bifurcate trial
of the gang enhancement allegations from trial of the underlying charges.
II.
Trial of the Underlying Charges
A.
Robbery of Juan Parada (Count 1)
On January 17, 2011, at
approximately 3:00 p.m., Parada was walking home from the train station near
the Imperial Courts housing projects.
After Parada turned onto Grape Street, Gutierrez and another
unidentified man grabbed Parada from behind and threw him to the ground. Both men proceeded to punch and kick Parada
repeatedly in his head and ribs. They
called Parada a “fucking Latino†as they beat him. Gutierrez took Parada’s wallet, which
contained about $400 in cash and his identification card. Gutierrez then ran into the housing projects
while the other man ran into an alley.
At the time of the robbery, Gutierrez was wearing a bluish striped shirt
over a white t‑shirt and the other man was wearing both a black t-shirt
and a white t-shirt with jeans. Parada
suffered a dislocated jaw and a painful head injury during the assault.
Shortly after the robbery, a patrol
car responded to the scene. Parada
provided a description of his attackers to the police, but did not mention
any tattoos or other markings on their persons.
Less than two weeks later, Parada identified Gutierrez in a six-pack
photographic lineup shown to him by the police.
At a preliminary hearing in July 2011 and at trial in November 2011,
Parada made in-court identifications of Gutierrez as one of the men who robbed
and assaulted him.
At the
preliminary hearing, Parada testified that he did not notice any tattoos or
markings on the face of either attacker.
At trial, however, Parada provided conflicting testimony on this issue. While he initially denied seeing any tattoos
on Gutierrez’s face during the attack, he later stated that he did observe a
distinct tattoo below Gutierrez’s right eye as he was being beaten. He indicated that he had not described the
tattoo to anyone prior to trial, including the police, because of “a lot of
fear,†but he was unable to articulate what about the tattoo made him feel
afraid. Parada never testified that he
associated the tattoo on Gutierrez’s face with a gang.
B.
Robberies of John Liu and Matias Sanchez (Counts
2-3)
On January 25, 2011, at
approximately 9:30 a.m., Liu and Sanchez were performing electrical work at a
house on Grape Street. The house was
directly across the street from the Imperial Courts housing projects and approximately
one block from the location where Parada was attacked. Liu was working inside the attic of the house
as Sanchez stood on a ladder leading into the attic. Gutierrez and another unidentified man walked
into the house and asked Sanchez for permission to retrieve something from the
backyard. When Sanchez stepped off the
ladder and went to the back door, Gutierrez pointed a gun at him and told
Sanchez to give him all of his money.
Sanchez complied and handed Gutierrez $150 in cash. Gutierrez then handed the gun to his companion,
climbed the ladder to the attic, and told Liu to give him all of his
money. Upon hearing Sanchez say that the
men had a gun, Liu handed Gutierrez his wallet, which contained $100 in cash. After taking the money, Gutierrez and the
other man walked out of the house through the back door. At the time of the robbery, both Gutierrez
and his companion were similarly dressed in a gray or white hooded sweatshirt
and pants.
Immediately after the robbery,
Sanchez called the police. In describing
the perpetrators to the responding officers, both Sanchez and Liu noted that
the man who demanded their money had a tattoo below his right eye. Sanchez described the tattoo as a line in the
shape of the letter “S.†Liu described
the tattoo at trial as resembling a butterfly.
Neither victim referred to the tattoo as being gang-related.
Later that day, the police drove
Sanchez to a field show-up inside the housing projects where Gutierrez had been
detained. Sanchez, who was seated in the
back of a patrol car about 50 feet away, was unable to make a positive
identification at that time. The
following day, Liu identified Gutierrez in a six-pack photographic lineup shown
to him by the police. Sanchez also was
shown a six-pack lineup that included Gutierrez’s photograph, but did not
identify anyone. At the preliminary
hearing in July 2011 and at trial in November 2011, both Sanchez and Liu made
in-court identifications of Gutierrez as one of the men who robbed them.
Gutierrez was
arrested inside the housing projects on January 26, 2011. His accomplice in the robberies was never
identified.
III.
Trial of the Gang Enhancement Allegations
Los Angeles Police Officer Francis
Coughlin testified as a gang expert for the prosecution. He had been assigned to the Southeast
Division for approximately 14 years where he was responsible for monitoring
certain housing development gangs, including the PJ Watts Crips gang. The PJ Watts Crips were a predominately
African-American gang with 600 to 800 documented members, including 200 active
members. The gang’s claimed territory
consisted of the area in and around the Imperial Courts Housing Development
with the heart of its territory being inside the development itself. Each of the robberies in this case was
committed in the territory claimed by the gang.
The gang associated itself with the color blue and with the letters “PJâ€
which stood for “projects.†The primary
activities of the gang included vandalism, robbery, carjacking, assault, rape,
firearm possession, and narcotics sales.
In committing crimes, the gang mostly targeted innocent Hispanic members
of the community rather than rival gang members. Specific crimes committed by active members
of the PJ Watts Crips included possession of a firearm by a felon in September
2008 and second degree robbery in August 2011.
Officer Coughlin was familiar with
Gutierrez based on his review of the field identification cards completed by
other gang officers. Between May 2007
and January 2011, Gutierrez had seven documented contacts with gang officers in
which he admitted to being a member of the PJ Watts Crips with the monikers
“Jaca†and “Little Scooby.†The two most
recent contacts occurred shortly before 2:00 p.m. on January 25, 2011, approximately
five hours after the robberies of Liu and Sanchez. Gutierrez was observed in the area of 115th
Street and Grape Street in the gang’s territory associating with other known
gang members. He admitted to officers at
that time that he was still an active member of the PJ Watts Crips.
At the time of his arrest,
Gutierrez had numerous gang-related tattoos, including the letters “PJ†under
his right eye, the words “fast cash†under one ear, the letter “P†on his right
arm, the letter “J†on his left arm, the letters “PJWC†on his right hand, and
the numbers “115†on his left hand.
According to Officer Coughlin, the face tattoos showed a strong
affiliation with the PJ Watts Crips and a willingness to commit crimes for the
gang. As Officer Coughlin described,
“when you put a tattoo of your gang on your face, other gang members hold you
accountable for that tattoo. . . . [I]f he does not put in the work, he’ll be
what they call ‘disciplined’ by that gang because he’d be considered a poser or
someone who is not down for his hood, who is taking the credit of the
neighborhood and showing it off on his face, but not willing to put in the
work.†The tattoo of the words “fast
cash†reflected a willingness to commit crimes that could lead to instant money
like robbery and carjacking. Officer
Coughlin explained that it was significant that Gutierrez’s tattoos could not
be easily covered up because it showed “how brazen he is†and “how much he
wants others to know that he’s a member of this gang.†While the tattoos would make Gutierrez more
identifiable to crime witnesses, “it’s letting the community know that, hey, I
know you see this. I don’t care. I’m going to do this anyway, because if you
come and testify, there’s a price to be paid.â€
When presented with a series of
hypothetical questions rooted in the facts of the case, Officer Coughlin opined
that each of the robberies was committed for the benefit of and in association
with the PJ Watts Crips gang. Officer
Coughlin testified that the crimes would benefit the gang by instilling fear in
the surrounding community which would make its residents less likely to report
future crimes committed by the gang, and by providing the gang with monetary
profits which could then be used to purchase drugs for resale and guns for use
against rival gang members. The crimes
also would benefit Gutierrez directly by enhancing his reputation within the
gang, which in turn would make it easier for Gutierrez to commit future crimes
for the gang’s benefit.
On cross-examination, Officer
Coughlin admitted that a gang member who commits a crime in gang territory does
not necessarily commit the crime for the benefit of his or her gang. He also acknowledged that a gang member at
times may commit a crime in gang territory for his or her own personal
gain. However, Officer Coughlin opined
that, in this case, the PJ Watts Crips so tightly controlled the area in and
around the housing projects that the gang would not allow robberies to occur in
its territory unless those crimes benefited the gang. As Officer Coughlin stated, “[t]he gang
doesn’t let people rob people if they’re not affiliated to the gang. That’s why it’s kept in-house. So if I wanted to rob someone and I lived in
Imperial Courts and I didn’t want to be a gang member, I’d better stand by,
because they’re probably going to come get me and the property that I
took. And that’s the control that they
have in these developments.â€
Additionally, because a PJ Watts Crips gang member who committed a crime
in the gang’s territory would bring an unwanted police presence into the area,
the gang member would have to be accountable for that crime to the gang. As Officer Coughlin explained, if a gang
member who robs, steals, or sells drugs “keeps the money all to himself and
it’s bringing police presence into the neighborhood, that’s not going to fly
with the gang, because there’s a certain amount of accountability amongst
gangsters. So if somebody is out doing a
bunch of street robberies on their own, keeping all the profits, they’re going
to have to answer to that gang.â€
Officer Coughlin further testified
that, due to the dynamics of the area controlled by the PJ Watts Crips, a gang
member who committed a robbery with another person in or around the Imperial
Courts Housing Development had “the freedom of knowing certain things. They know they’re not going to be stopped
because it’s his gang that’s watching out.
They know they have a place to run.
They can run inside their development and seek refuge in their friends’
houses, and they also have the understanding of knowing that if things do turn
difficult, other members of the gang who aren’t even participating in the crime
may come to their aid. . . . And that’s why so many robberies are committed by
the Project Crips in this neighborhood, not by other gangs. That’s how they create that atmosphere and
intimidation.†According to Officer
Coughlin, over 90 percent of the crimes committed inside the housing
development were gang-related.
Officer
Coughlin admitted that he was speculating that Gutierrez’s accomplice in the
robberies was a gang member, but explained that, in his experience as a gang
officer, PJ Watts Crips gang members only committed crimes with other members
of that gang. Officer Coughlin also
admitted that he had no personal knowledge that any of the proceeds from the
robberies went to the gang, that the gang was made aware that Gutierrez was one
of the perpetrators, or that Gutierrez’s reputation in the gang was enhanced by
his participation in the crimes. In addition,
Officer Coughlin acknowledged that there were no known witnesses to the
robberies other than the three victims and that none of the victims associated
Gutierrez’s tattoos with a gang or was aware that Gutierrez was affiliated with
a gang. However, Officer Coughlin
testified that it was not necessary that the victims in this case actually knew
that Gutierrez was a gang member because “when a gang member robs or terrorizes
a victim, the implications are felt throughout the development in the
community.â€
IV.
Verdict and Sentencing
At the conclusion of the trial on
the underlying charges, the jury found Gutierrez guilty of the second degree
robberies of Parada, Liu, and Sanchez.
In addition, the jury made true findings on the great bodily injury
enhancement alleged as to the robbery of Parada (§ 12022.7, subd. (a)),
the elderly victim enhancement alleged as to the robbery of Liu
(§ 1203.09, subd. (f)), and the principal armed with a firearm
enhancements alleged as to the robberies of Liu and Sanchez (§ 12022,
subd. (a)(1)). The jury also made a true
finding on the personal use of a firearm enhancement alleged as to the robbery
of Sanchez, but not on the same enhancement alleged as to the robbery of Liu (§
12022.53, subds. (b), (e)(1)). At the
conclusion of the bifurcated trial on the gang enhancement allegations, the
jury made true findings on each of the three gang enhancements alleged
(§ 186.22, subd. (b)(1)).
The trial court sentenced Gutierrez
to a total term of 34 years and eight months in state prison. As to the robbery of Sanchez (count 3), the
court selected it as the base count, and imposed a term of five years on the
robbery count, 10 years on the personal use of a firearm enhancement (§
12022.53, subd. (b)), and 10 years on the gang enhancement (§ 186.22,
subd. (b)(1)). As to the robbery of Liu
(count 2), the court imposed a consecutive term of one year on the robbery
count, three years and four months on the personal use of a firearm enhancement
(§ 12022.53, subd. (b)), and a stayed term of three years and four months on
the gang enhancement (§ 186.22, subd. (b)(1)). As to the robbery of Parada (count 1), the
court imposed a consecutive term of one year on the robbery count, one year on
the great bodily injury enhancement (§ 12022.7, subd. (a)), and three
years and four months on the gang enhancement (§ 186.22, subd.
(b)(1)). Following his sentencing,
Gutierrez filed a timely notice of appeal.
DISCUSSION
I.
Sufficiency of the Evidence on the Gang
Enhancements
On appeal, Gutierrez challenges the
sufficiency of the evidence supporting the jury’s true findings on the gang
enhancements alleged as to each of the robbery counts. He specifically contends that the evidence
was insufficient to support the jury’s findings that he committed the robberies
for the benefit of, at the direction of, or in association with a gang, and
with the specific intent to promote, further, or assist in criminal conduct by
gang members. Gutierrez reasons that,
apart from the evidence that he committed the robberies in his gang’s claimed
territory, there were no particularized facts to support the gang expert’s
opinion that Gutierrez acted with a specific intent to benefit or promote the
interests of his gang. Considering the
totality of the evidence in this case, however, we conclude that the gang
enhancements were supported by substantial evidence.
“In considering a challenge to the
sufficiency of the evidence to support an enhancement, we review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence – that is, evidence that is reasonable, credible,
and of solid value – from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.
[Citation.] We presume every fact
in support of the judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a
contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.’
[Citation.]†(
59-60.)
The California Street Terrorism
Enforcement and Prevention Act was enacted by the Legislature with the express
purpose “to seek the eradication of criminal activity by street gangs.†(§ 186.21.)
One component of the statute is a sentence enhancement provision for
felonies committed “for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members.†(§ 186.22, subd. (b)(1).) As the California Supreme Court has observed,
section 186.22 “does not criminalize mere gang membership; rather, it imposes
increased criminal penalties only when the criminal conduct is felonious and
committed not only ‘for the benefit of, at the direction of, or
in association with’ . . . a ‘criminal street gang,’ but also with the ‘specific
intent to promote, further, or assist in any criminal conduct by gang
members.’ [Citation.]†(People
v. Gardeley (1996) 14 Cal.4th 605, 623-624.) The sentence enhancement accordingly applies
“only if the crime is ‘gang related.’†(
“It is well settled that expert
testimony about gang culture and habits is the type of evidence a jury may
rely on to reach . . . a finding on a gang allegation. [Citation.]â€
(People v. Ferraez (2003) 112
Cal.App.4th 925, 930.) “‘Generally, an
expert may render opinion testimony on the basis of facts given “in a
hypothetical question that asks the expert to assume their truth.†[Citation.]
Such a hypothetical question must be rooted in facts shown by the
evidence, however. [Citations.]’†(People
v. Ward (2005) 36 Cal.4th 186, 209.)
While a gang expert may not ordinarily testify whether the defendant
committed a particular crime for the benefit of a gang, the expert “properly
could . . . express an opinion, based on hypothetical questions that tracked
the evidence, whether the [crime], if the jury found it in fact occurred, would
have been for a gang purpose.†(
1048.) Indeed, “‘[e]xpert opinion that
particular criminal conduct benefited a gang†is not only permissible but can
be sufficient to support the . . . section 186.22, subdivision (b)(1), gang
enhancement. [Citation.]†(Ibid.)
Gutierrez argues that each of the
gang enhancements must be reversed because, other than Officer Coughlin’s
generalized opinion that almost any crime committed by a gang member in gang
territory would be for the benefit of a gang, there was no evidence that the
robberies committed in this case were gang-related. As Gutierrez points out, the prosecution did
not present any evidence that his accomplice in the robberies was a gang
member. Nor was there any evidence that
either Gutierrez or his accomplice displayed any gang signs, called out any
gang names, or otherwise announced their gang affiliation during their
commission of the crimes. In addition,
Officer Coughlin admitted that he had no personal knowledge that any of the
proceeds from the robberies was distributed to Gutierrez’s gang, that
Gutierrez’s participation in the robberies was communicated to his fellow gang
members, or that his gang’s connection to the crimes was circulated within the
surrounding community. Gutierrez thus
reasons that Officer Coughlin’s explanation as to how the robberies might have
benefited the gang was based solely on speculation, not on any facts shown by
the evidence.
A thorough review of the record,
however, reflects that Officer Coughlin’s expert testimony was supported by
substantial evidence connecting Gutierrez’s crimes to his gang. First, each of the robberies was committed in
the PJ Watts Crips’ claimed territory in very close proximity to the Imperial
Courts Housing Development. The
robberies of Liu and Sanchez occurred directly across the street from the
development, and the robbery of Parada occurred approximately one block
away. Immediately following the robbery
of Parada, Gutierrez fled into the development itself. As described by Officer Coughlin, the housing
development was in the heart of the territory claimed by the PJ Watts Crips and
was subject to strict control by the gang.
Approximately 90 percent of crimes committed in the development were
gang-related and the gang’s targeted victims were mostly innocent Hispanic
residents rather than rival gang members.
Officer Coughlin further testified that a PJ Watts Crips gang member who
committed a crime could seek refuge inside the development and rely on the
protection afforded by his fellow gang members who resided there. Notably, when Gutierrez was detained a few
hours after the second robbery, he was inside the development and in the company
of other PJ Watts Crips gang members.
From this evidence, the jury reasonably could have inferred that
Gutierrez acted in association with the PJ Watts Crips by targeting his victims
based on their close proximity to his gang’s stronghold and the safe refuge
that it provided to its members.
Second, at the time of the
robberies, Gutierrez had a number of visible gang tattoos on his face, arms,
and hands. The tattoos included the
letters “PJ†below one eye and the words “fast cash†below one ear. Each of the victims testified that they saw a
distinct tattoo below Gutierrez’s right eye during the robberies. Although it is true that none of the victims
directly associated the tattoo with a gang in their testimony, Parada admitted
that he never disclosed this identifying feature to the police because of
fear. Consistent with this evidence,
Officer Coughlin explained that prominent gang tattoos on a gang member’s face
were a form of intimidation. In addition
to showing a strong affiliation with a gang, such visible tattoos were intended
to communicate to crime victims and witnesses that the gang member was not
concerned about being identified and that there was “a price to be paid†if the
crime was reported to the police.
Therefore, while the victims in this case may not have realized that
Gutierrez’s tattoos were gang-related, the jury reasonably could have inferred
that Gutierrez intended to make his membership in a gang known to his victims
through his prominent gang tattoos.
Third, Officer Coughlin testified
that the PJ Watts Crips gang so tightly controlled the profit-based crimes in
its claimed territory that it would not allow such crimes to be committed by
its members unless they benefited the gang.
Officer Coughlin explained that the PJ Watts Crips were unique in the
level of control that they exerted over the area in and around the Imperial
Courts Housing Development. Because the
commission of a crime by a PJ Watts Crips gang member would bring an unwanted
police presence into the area, the gang would discipline the perpetrator and
refuse to provide him or her with protection if the crime did not benefit the
gang. With respect to the specific
benefits received by the gang, Officer Coughlin testified that the PJ Watts
Crips used the proceeds from the robberies committed by its members to fund
other criminal activities, such as the purchase of drugs for resale and
firearms for use against rival gangs.
The PJ Watts Crips also used the violent nature of the robberies to
instill fear in the surrounding community, which would facilitate the
commission of future crimes by the members of the gang. (See e.g., People v. Albillar, supra,
51 Cal.4th at p. 63 [“[e]xpert opinion that particular criminal conduct
benefited a gang by enhancing its reputation for viciousness can be sufficient
to raise the inference that the conduct was ‘committed for the benefit
of . . . a[ ] criminal street gang’â€]; People
v. Gardeley, supra, 14 Cal.4th at
p. 619 [based on expert testimony that a gang relied on violent assaults to
frighten residents, “the jury could reasonably conclude that the attack on [the
victim] . . . was committed ‘for the benefit of, at the direction of, or
in association with’ that gangâ€].)
It is true that Officer Coughlin
lacked personal knowledge that Gutierrez shared any of the proceeds from the
robberies with his fellow gang members, or that either Gutierrez or his gang
claimed responsibility for the robberies to enhance their reputations in the
community. However, contrary to
Gutierrez’s contention, there was other evidence supporting Officer Coughlin’s
expert opinion that the crimes were intended to benefit and further the
interests of the gang. Eight days after
Gutierrez robbed and brutally assaulted Parada in broad daylight on a public
street, he robbed Liu and Sanchez at gunpoint only a block away from his prior
crime. Gutierrez fled into the housing
development immediately after the first robbery, and was observed inside the
development associating with fellow gang members shortly after the second
robbery. Such evidence reasonably could
support an inference that Gutierrez was never disciplined by his gang for
acting for his own personal benefit, but rather was allowed to continue
committing robberies in his gang’s territory for the broader benefit of his
gang.
For these
reasons, the cases on which Gutierrez relies, including In re Daniel C. (2011) 195 Cal.App.4th 1350, People v. Ochoa (2009) 179 Cal.App.4th 650, People v. Ramon (2009) 175 Cal.App.4th 843, and
1192, do not support a reversal of the gang enhancements in this
case. None of those prior decisions
included the specific factual scenario present here – a gang member displaying
prominent gang-related tattoos commits a series of robberies in his gang’s
tightly controlled territory, and upon completion of the crimes, is observed in
his gang’s stronghold associating with other gang members. Based on the totality of the evidence, the
jury reasonably could have found that Gutierrez committed each of the robberies
for the benefit of, at the direction of, or in association with the PJ Watts
Crips, and with the specific intent to promote, further, or assist in criminal
conduct by his gang. The jury’s true
findings on the gang enhancements were supported by substantial evidence.
II.
Sentencing Error
Gutierrez contends, and the
Attorney General concedes, that the trial court erred in imposing a
section 12022.53, subdivision (b) firearm enhancement on Count 2 because the
jury specifically found that enhancement allegation to be not true. We agree.
As to Count 2, the robbery of Liu, there were two firearm enhancements
alleged. Although the jury made
a true finding that a principal was armed with a firearm within the
meaning of section 12022, subdivision (a)(1), it found the allegation that
Gutierrez personally used a firearm within the meaning of section 12022.53,
subdivisions (b) and (e)(1) to be “not true.â€
at the sentencing hearing, the trial court erroneously imposed a consecutive
term of three years and four months on Count 2, a subordinate count, under
section 12022.53, subdivision (b). The
section 12022.53, subdivision (b) enhancement must therefore be vacated.
As Gutierrez
acknowledges, because the jury made a true finding on the firearm enhancement
alleged under section 12022, subdivision (a)(1), he may be subject to an
additional term as to Count 2 based on this separate enhancement. Consequently, we remand the matter to the
trial court for resentencing on Count 2 in light of the jury’s true finding
on the firearm enhancement alleged under section 12022, subdivision (a)(1) and
“not true†finding on the firearm enhancement alleged under section 12022.53,
subdivisions (b) and (e)(1), as well as the court’s discretion to reconsider
the propriety of the stay of the gang enhancement.
DISPOSITION
The judgment
is affirmed. The matter is remanded to
the trial court for resentencing on Count 2 in accordance with the jury’s
true finding on the firearm enhancement alleged under section 12022,
subdivision (a)(1) and “not true†finding on the firearm enhancement alleged
under section 12022.53, subdivisions (b) and (e)(1).
ZELON,
J.
We concur:
PERLUSS, P.
J.
JACKSON, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code.
name="_ftn2" title="">[2] In
its verdict form, the jury was not asked to make any finding as to whether a
principal other than Gutierrez personally used or discharged a firearm within
the meaning of section 12022.53, subdivisions (b), (c), (d), or (e)(1).
