P. v. Jones
Filed 6/16/08 P. v. Jones CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. TRIYON JONES, Defendant and Appellant. | B191254 (Los Angeles County Super. Ct. No. BA271564) ORDER MODIFYING OPINION AND DENYING REHEARING [CHANGE IN JUDGMENT] |
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY J. ZELAYA, Defendant and Appellant. | B192451 |
THE PEOPLE, Plaintiff and Respondent, v. ANGELO ROBERTS, Defendant and Appellant. | B193068 |
THE COURT:
It is ordered that the opinion filed in these consolidated matters on May 15, 2008, be modified as follows:
1. The third paragraph under heading number 10 is deleted, and the following is substituted:
We therefore reverse the judgments insofar as the trial court failed to sentence appellants (i.e., Jones, Zelaya, and Roberts) on counts 2 and 3 and Roberts on count 7 and remand these matters for the court to impose and then stay an appropriate sentence in each instance.
2. The first paragraph of footnote 19 is deleted, and the following is substituted:
In a letter brief, Roberts contends this court concluded otherwise in People v. Garcia, but that case is of no force or effect. Review has been granted in Garcia (S157870). (Cal. Rules of Court, rules 8.1105(e), 8.1115(a).)
2. Footnote 20 is deleted, and the following is substituted:
We note the holding of Bracamonte that the lesser firearm enhancements under section 12022.53 must be imposed and then stayed is precisely what our Supreme Court held in People v. Gonzales (2008) __ Cal.4th __ [2008 DJ DAR 7999, 8002], which was decided on June 2, 2008, and is not yet final.
4. The last paragraph under heading number 11 is deleted, and the following is substituted:
We find persuasive the reasoning of the Bracamonte court and therefore conclude the trial court erred by staying imposition of the lesser enhancements under subdivisions (b) and (c) of section 12022.53. We therefore reverse the judgments in this regard and remand these matters for the trial court to impose the lesser firearm enhancements and stay their execution.
5. The last sentence of the second paragraph under heading number 12, which begins with the word Therefore, is deleted.
6. The following paragraph is inserted above heading number 13:
Rather, in the absence of a true finding on the gang allegation, it was incumbent on the trial court to strike the true findings under subdivisions (b) through (d) of section 12022.53. (See, e.g., People v. Haykel, supra, 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Bradley, supra, 64 Cal.App.4th 386, 390-391; People v. Jones, supra, 8 Cal.App.4th 756, 758; People v. Irvin, supra, 230 Cal.App.3d 180, 190 [failure to impose or strike enhancement unauthorized sentence subject to correction on appeal]; see also, 12022.53, subd. (h) [prohibiting the striking of a finding bringing a person within the provisions of this section].)
7. The last sentence of the last paragraph under heading number 14 which begins with We direct the . . . is deleted, and the following is substituted:
We remand these matters for the trial court to vacate these erroneous orders and enter new orders imposing the personal use enhancement; staying execution of the personal use enhancement; and exercising its discretion either to impose the 10 year violent felony gang enhancement (186.22, subd. (b)(1)(C)), rather than the 5 year serious felony gang enhancement (186.22, subd. (b)(2)(B)), or to strike the additional punishment in compliance with subdivision (g) of section 186.22.
8. The first three lines under DISPOSITION beginning with The judgments are modified . . . are deleted, and the following substituted:
Appellants respective sentences are reversed, and the matters are remanded for resentencing, as follows:
9. The fifth line under DISPOSITION is deleted, and the following is substituted:
Roberts: Impose sentences on counts 2 and 7 and stay those sentences.
10. Insert following after the fifth line under DISPOSITION:
Zelaya: Vacate order staying the firearm enhancements under subdivisions (b), (c)), and (d) under section 12022.53 and enter a new order striking the findings underlying these enhancements.
11. Delete sixth and seventh lines under DISPOSITION and substitute the following:
Jones and Roberts: [Count 1] Vacate order staying the lesser 20 year (12022.53, subd. (c)) and 10 year ( 12022.53, subd. (b)) enhancements and enter a new order imposing these enhancements and then staying their execution.
12. The eighth through tenth lines under DISPOSITION are deleted, and the following is substituted:
Roberts: [count 6] Vacate order staying imposition of personal use and gang enhancements and enter new orders imposing the personal use enhancement; staying execution of the personal use enhancement; and exercising its discretion either to impose the 10 year violent felony (186.22, subd. (b)(1)(C)) or to strike the additional punishment in compliance with subdivision (g) of section 186.22.
13. Insert the following sentence before the sentence beginning In all other respects, immediately above NOT TO BE PUBLISHED . . . :
The superior court is directed to prepare respective amended abstracts of judgment accordingly and forward them to the Department of Corrections.
These modifications effect changes in the judgment.
The respective petitions for rehearing filed on May 28, 2008, by defendants and appellants Anthony J. Zelaya and Angelo Roberts have been read and duly considered. The petitions are denied.
__________________________________________________________________
COOPER, P. J. RUBIN, J.
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