Filed 9/30/26 P. v. Nieves CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D087805
Plaintiff and Respondent, (Super. Ct. No. SWF2201444
v.
MARTIN ODILON NIEVES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Frederick Paul Dickerson III, Judge. Remanded with instructions to modify
the abstract of judgment; affirmed as modified.
Siri Shetty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Collette
C. Cavalier and Emily Reeves, Deputy Attorneys General, for Plaintiff and
Respondent.
Martin Odilon Nieves approached a parked car and shot the passenger,
Jose C., in the leg. Jose exited the vehicle, and Nieves shot him a second
time. A jury convicted Nieves of shooting at an occupied vehicle in violation
of Penal Code1 section 246 (count 1) and assault with a firearm in violation of
section 245, subdivision (a)(2) (count 2). The jury also found that Nieves did
personally discharge a firearm and did cause great bodily injury to the victim
as to each count. The trial court sentenced Nieves to an indeterminate term
of 25 years to life plus a determinate term of 22 years 4 months.
Nieves asserts that the judgment must be reversed because the
prosecutor committed prejudicial misconduct by referring to facts outside the
record during closing argument. In addition, he asserts that the trial court
erred by imposing separate sentences on counts 1 and 2 in violation of section
654; that the trial court erred by imposing a three year enhancement for
great bodily injury under section 12022.7, subdivision (a) on count 1 when it
had already imposed the 25 years to life enhancement under section
12022.53, subdivision (d); and that a $10,000 restitution award in the
abstract of judgment conflicts with the trial court’s oral pronouncement of
judgment. The People concede the latter two errors, and because we agree
with the concessions, we exercise our inherent authority to amend the
abstract of judgment accordingly. We find no other prejudicial error and
affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of what occurred are not in dispute in this case. On the
afternoon of April 29, 2022, the victim, Jose C., was sitting in the front
passenger seat of a parked car smoking fentanyl and methamphetamine with
M.J., a female acquaintance. A man approached the car, opened the door,
and shot Jose in the leg. Jose got out of the car and tried to grab the gun, but
he was too far away, and the man shot him a second time in the lower left
hip. Portions of the encounter were captured on Ring doorbell cameras in the
1 Further unspecified statutory references are to the Penal Code.
2
area, but the shooter’s identity was obscured by a motorcycle helmet. The
primary issue at trial was whether Nieves was, in fact, the shooter.
A. Prosecution’s Case
1. Jose
Jose testified reluctantly. He said that he had never met or seen
Nieves, and that Nieves did not shoot him. The prosecutor showed Jose a
video of the shooting. Jose said that he did not remember the video, and that
the next memory he had after being shot was being interviewed by a police
officer in the hospital. The prosecution played a video of the interview for the
jury at a later point in the trial. Jose did not identify the shooter or give a
description during the interview.
2. M.J.
M.J. also testified reluctantly. She said that she knew Nieves but
claimed that she did not remember much about their relationship and that
she was “really getting high during that time.” She also said that she was
“really high” on the day of the shooting and did not remember the details of
what occurred.
M.J. did recall being arrested on a drug charge shortly after the
shooting. The prosecutor asked M.J. about statements she made during an
interview at the jail. She said that she just remembered “agreeing to
anything so I wouldn’t go to jail.” The prosecutor then played a video of the
interview for the jury.
During the interview, M.J. said that she had initially told the police a
different person was the shooter, to avoid being arrested. She later said that
she had been in a romantic relationship with Nieves until about two weeks
before the shooting. Nieves told M.J. that he loved her, and she said that she
did not love him in that way. She then started dating Jose. M.J. said that
Nieves came to see her on the day of the shooting, and that he threatened to
3
shoot her. M.J. said that Nieves had a helmet on so she could not see his
face, but she knew it was him because of his motorcycle and his tattoos.
However, she did not identify any specific tattoo.
M.J. did not want to be involved because she believed Nieves would kill
her, and her story was, at times, inconsistent. M.J. said that she talked to
Nieves on the phone before the shooting and that he was supposed to come
meet her because he had her “weed.” The officers examined M.J.’s phone and
told her that there was no record of a call to Nieves. She then said that she
deleted all the messages with Nieves in her phone and that she used her
father’s phone to call Nieves that day.
After watching the video of the interview, M.J. said that the video did
not include the police telling her, before recording, that they would throw her
in jail if she did not identify the shooter. She reiterated that she was “really
high” and said that she felt forced to talk and would have told them anything
to avoid going to jail. Later, she said that the officer kept changing the topic
to Nieves, and that he did not want to hear about the other person that she
originally named as the shooter.
3. Carolyn Barkschat
Carolyn Barkschat lived on the street where the shooting occurred. At
around 3:30 or 4:00 in the afternoon, Barkschat heard a woman yelling
something like, “You can’t take my shit,” followed by a man yelling, “you need
to get him to the hospital.” She saw someone, maybe a guy and a girl, throw
something that looked like a big black industrial trash bag into the back of a
red pickup truck. She also recalled seeing a white pickup truck drive up
around the same time. The red truck had been parked on the street most of
the day and she had also noticed it parked there a couple of weeks before.
Barkschat spoke to a police officer shortly after the incident, and the
prosecutor played the video for the jury. In the video, Barkschat said that
4
she saw a male get out of the white truck and put the trash bag in the red
truck. She also saw a motorcycle start up and drive off after the white truck.
She thought that the motorcycle was “probably a Harley” and said that the
driver was wearing all black, with a black skullcap helmet. She described
him to a deputy on the scene as “early 50s, either white or light-skinned
Hispanic, wearing all black, and facial hair, with tattoos.” Barkschat had
seen the man riding the motorcycle in the area multiple times. She thought
that Nieves looked “very similar” to the person on the motorcycle.
4. Sheriff’s Investigator Juan Andrade
Juan Andrade was the lead investigator on the shooting for the
Riverside County Sheriff ’s Office. He conducted the interview of M.J. that
the prosecution played for the jury.
Andrade noted that the police did not recover any shell casings from
the area of the shooting, which indicated that the shooter used a revolver, as
opposed to a semi-automatic handgun.2 He said that the police arrested
Nieves and, on the same day, they recovered a motorcycle believed to be
involved in the case, and searched Nieves’s home.3
5. Sheriff’s Investigator Diana Mendoza
Another investigator, Diana Mendoza, testified further regarding the
search of Nieves’s residence. She said that the police found a motorcycle
license plate outside the entrance of the property on top of a barbecue stand.
They also found two motorcycle helmets in a bedroom closet, one black and
one blue. The black helmet had two stickers on the sides, one that said, “2nd
2 An expert witness on handguns confirmed the same.
3 Notably, there was no further discussion in the record regarding the
recovered motorcycle.
5
Amendment,” and one that said, “Bell,” and a Harley Davidson sticker on the
back.
6. Sheriff’s Deputy Ian Noel
Deputy Noel assisted with the investigation shortly after the shooting.
He ran the plates on a red pickup truck that was parked across the street
from where the shooting occurred and discovered that it was registered to
Nieves. He also spoke with M.J. at the scene and wrote in a report that she
indicated that Jose was outside the vehicle when he got shot the first time.
M.J. said that the shooter came by on a motorcycle and was wearing all black
with a helmet that shielded his whole face. She heard two gunshots as the
motorcycle drove past.
Deputy Noel recalled doing a records check for a Honda motorcycle
registered to Nieves. He confirmed that it was a Honda and not a Harley
Davidson. The records included multiple photographs of the motorcycle being
ridden on the street. The rider was wearing a black jacket with a red, white,
and blue skull on the back. Deputy Noel explained that he used a license
plate number to look up the motorcycle through the CLETS (California Law
Enforcement Telecommunications System), and that the photographs he had
referred to were from automated license plate recognition (LPR) cameras. He
identified People’s exhibit no. 52 as the license plate check return for plate
number 24X1555.
7. Forensic Technician Sean Edwards-Sivitos
Forensic technician Sean Edwards-Sivitos processed the black sedan
that Jose and M.J. had been sitting in, as well as the red truck parked on the
street. There was a red substance that looked like blood on the seat of the
car. There was a black Harley Davidson jacket in the back of the truck.
There was a bag or case that appeared to be meant for transporting a pistol
or revolver in the back portion of the cab, but it did not contain a gun.
6
8. Stipulations
The parties stipulated to the recovery of Ring camera footage from a
neighbor and also that, “if called to testify, Dr. Mohammed Ahmed would
state: one, he is a licensed emergency room doctor who was working Inland
Valley Medical Center on April 29, 2022; two, he was the attending physician
for [Jose], who was admitted into the emergency room on April 29, 2022;
three, examination of [Jose] revealed a through-and-through gunshot wound
in the left thigh resulting in a near transection of left femoral artery, and a
separate gunshot wound to the rear left hip resulting in a fracture of the
greater trochanter section of the femur.”
B. Defense
Nieves did not testify, and the defense did not present any other
witnesses.
C. Verdict and Sentencing
The jury found Nieves guilty on both counts. As to count 1, shooting at
an occupied motor vehicle, the jury found that Nieves did personally
discharge a firearm and proximately caused great bodily injury within the
meaning of sections 12022.53, subdivision (d), and also that he did personally
inflict great bodily injury on Jose within the meaning of sections 12022.7,
subdivision (a). As to count 2, assault with a firearm, the jury found that
Nieves did personally use a firearm within the meaning of sections 12022.5,
subdivision (a), and did personally inflict great bodily injury upon Jose within
the meaning of sections 12022.7, subdivision (a).
In a bifurcated proceeding, the trial court found that Nieves had a prior
serious felony under section 667, subdivision (a), and a prior strike under
section 667, subdivision (c). It also found that Nieves had numerous adult
convictions of increasing seriousness, among other aggravating factors.
7
The trial court sentenced Nieves to an aggregate term of 22 years 4
months plus 25 years to life as follows: 10 years for count 1 (5 years the
middle term doubled by the strike) plus 25 years to life for the section
12022.53, subdivision (d) firearm enhancement, and 3 years for the section
12022.7 great bodily injury enhancement; and 2 years (one third the middle
term double to 6 years by the strike) on count 2, plus 1 year 4 months for the
section 12022.5 firearm enhancement, 1 year for the section 12022.7 great
bodily injury enhancement, and 5 years for the serious felony prior.
Nieves filed a timely notice of appeal.
II. DISCUSSION
Nieves asserts the judgment must be reversed because the prosecutor
committed prejudicial misconduct by referencing facts not in evidence during
his closing statement. In addition, he asserts that the trial court erred by
sentencing him on both counts 1 and 2 in violation of section 654, that the
one-year great bodily injury enhancement under section 12022.7 on count 2
was unauthorized, and that the abstract of judgment must be amended to
strike a $10,000 restitution fine.
A. Any Reference to Facts Outside the Record During Closing
Argument Does Not Require Reversal
We turn first to Nieves’s assertion that the prosecutor committed
reversible misconduct by referring to facts outside the record during his
closing argument.
A prosecutor has wide latitude to argue his or her case vigorously, but
improper argument may amount to prejudicial misconduct if a prosecutor
uses deceptive or reprehensible methods to persuade the jury or infects the
trial with such unfairness as to make the conviction a denial of the
defendant’s constitutional right to due process. (People v. Hill (1998)
17 Cal.4th 800, 819; People v. Tully (2012) 54 Cal.4th 952, 1009–1010.)
8
Likewise, “a prosecutor may not go beyond the evidence in his argument to
the jury.” (People v. Benson (1990) 52 Cal.3d 754, 794 (Benson).) However,
comment on the evidence is permitted, “if it is reasonably fair in light of the
evidence.” (Id. at p. 795.) A prosecutor need not act in bad faith to commit
misconduct, but the defendant must have been prejudiced as a result. (People
v. Bolton (1979) 23 Cal.3d 208, 213–214.)
To determine whether the alleged misconduct was sufficiently
prejudicial as to require reversal, we consider “how the statement would, or
could, have been understood by a reasonable juror in the context of the entire
argument.” (People v. Woods (2006) 146 Cal.App.4th 106, 111 (Woods);
Benson, supra, 52 Cal.3d at p. 793.) “When attacking the prosecutor’s
remarks to the jury, the defendant must show that, ‘[i]n the context of the
whole argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner.” (People v. Centeno (2014) 60 Cal.4th 659,
667 (Centeno).) “In conducting this inquiry, we ‘do not lightly infer’ that the
jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.” (Ibid.)
Here, the prosecutor began his argument by stating, “Nothing I say is
evidence. Nothing I say is law.” He then said the case came down do a
question of “who done it?” As relevant to the issues on appeal, the prosecutor
argued that it was clear from the videos that M.J. knew the shooter. He also
reminded the jury that Barkschat said that Nieves looked “very similar” to
the guy on the motorcycle, and that she had also seen the same man several
times in the weeks before the shooting.
Nieves contends that the prosecutor then committed prosecutorial
misconduct by making the following statements:
9
1) there were “statements from people that Martin Nieves wears
a black leather jacket that has a skull on it”;
2) “[Nieves] drove his motorcycle home from work, and his buddy
brought his jacket”;
3) “And what Martin Nieves sees, is he sees [M.J.] sitting in a
car with a guy he doesn’t like, [Jose]. So not only is she
shoving it in his face, she’s shoving it in his face with a guy he
doesn’t like. And she’s doing it in front of one of his friends,
who she knew was going to be there because they had talked on
the phone to meet up at her house”;
4) “[T]he car is right here at the end of the driveway, right where
Mr. Nieves and his buddy are going to pull up after work”;
5) “This is People’s Exhibit Number 52. This is the DMV
registration that I unfortunately don’t have a digital copy of.
About the fourth line down is the license plate number
24X1555. The year made is ‘04. The make is HD, Harley
Davidson. Honda is ‘HON.’ So, as much as he wants to talk
about it being a Honda motorcycle, which one of the officers
did say it’s a Harley Davidson.”
As an initial matter, “a defendant cannot complain on appeal of
misconduct by a prosecutor at trial unless in a timely fashion he made an
assignment of misconduct and requested that the jury be admonished to
disregard the impropriety.” (Benson, supra, 52 Cal.3d at p. 794.) Nieves
concedes that his counsel did not object to these statements or ask for an
admonishment in the trial court. However, he asserts that, if we find that his
counsel waived the arguments on appeal by failing to object, his trial counsel
provided ineffective assistance of counsel. Accordingly, we will exercise our
discretion to address the merits of Nieves’s argument. As we explain, we
conclude that the prosecutor’s comments were fair commentary on the
evidence, and that any misconduct or error was not prejudicial. (See People
v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6 [appellate courts have
discretion to address arguments raised for the first time on appeal].)
10
First, Nieves asserts there was no testimony that he wore a black
leather jacket with a skull on it. However, Deputy Noel did testify that he
found multiple LPR photographs of a person riding the motorcycle with
license plate 24X1555, which was registered to Nieves, and that the rider was
“wearing a black jacket with a red and white and blue skull on the back.”
This is likely the statement that the prosecutor was referring to, and we
cannot say that his reference to “statements from people,” in the plural, was a
gross mischaracterization of the evidence. In addition to Deputy Noel’s
testimony, there was also testimony that the police recovered a black leather
jacket from the red truck that was also registered to Nieves. Photographs of
that jacket were entered into evidence.
Moreover, Nieves does not explain the importance of the alleged
misstatement about the jacket. M.J. said that she recognized Nieves by his
tattoos and Barkschat also said that the shooter was wearing short sleeves
and that she could see tattoos on his arm. This evidence suggested that the
shooter was not wearing the black leather jacket that Nieves allegedly wore
while riding at the time of the shooting.
Next, Nieves asserts that there was no evidence or testimony that
Nieves arrived that day with “a buddy” or that M.J. knew that he would have
someone else with him. To the contrary, Barkschat testified that a white
truck drove up around the same time as the shooter on the motorcycle, and
that the motorcycle and the truck left together. In addition, M.J. had
speculated, during the interview at the police station, that Nieves’s truck was
parked on the street because he dropped it off there and then got picked up
for work by his boss, who also drove a truck. She also said that she called
Nieves before the shooting, and that he was supposed to meet her there to
return her “weed.” And of course, she was aware that Nieves’s truck was
11
there, suggesting that he got a ride from a coworker. Accordingly, although
the person in the truck was never identified, it was fair commentary to assert
that the other person was a friend from work. In any event, defense counsel
argued that there was no evidence regarding the “buddy from work” or the
identity of the person in the white truck, and the jury was certainly capable
of considering that argument as well.
Finally, Nieves asserts that there was no evidence that the motorcycle
registered to Nieves was a Harley Davidson and not a Honda. During his
closing statement, defense counsel said the license plate on the motorcycle
shown in some of the photos “is the license plate to a Honda, not a Harley,”
and that the motorcycle “at the scene was identified as a Harley.” In
response, the prosecutor referred the jury to a copy of the vehicle registration
and asserted that the identification of the make as “HD” stood for Harley
Davidson, and that Honda would have been “HON.” We agree that there was
no testimony confirming that “HD” does in fact stand for Harley Davidson on
a California vehicle registration, nor was there testimony that “HON” is the
standard abbreviation for Honda. However, Nieves does not dispute that the
registration, which was entered into evidence and which the jury could view
for themselves, lists the make as “HD,” as the prosecutor asserted. Moreover,
whether the motorcycle was in fact a Honda or a Harley Davidson was not a
critical fact in the case. The only evidence that the motorcycle that the
shooter rode that day was a Harley Davidson came from Barkschat and she
testified only that she “probably” told the deputy on the scene that the
motorcycle was a Harley. She never explained why she believed that it was a
Harley, or whether she had sufficient familiarity with motorcycles to be able
to make that determination.
12
By contrast, there was a significant amount of testimony, and
documentary evidence, concerning the license plate on the motorcycle
registered to Nieves. The prosecutor asserted that the motorcycle seen on an
LPR camera just before the shooting was a Harley, and that the same license
plate, registered to Nieves, could be seen in the photo exhibit. The jury had
the photo available and could decide whether the bike was in fact a Harley
Davidson or a Honda, and, perhaps more importantly, whether the license
plate matched the one registered to Nieves and found at his residence after
the shooting. Thus, it was certainly feasible for the jury to infer that
everyone was discussing the same motorcycle, with the same license plate,
regardless of whether it was a Honda or a Harley.
Many of the cases that Nieves relies on center on statements vouching
for the credibility of a witness. For example, in Woods, the court explained,
the prosecutor’s “argument strayed farther into impermissible territory when
she implicitly suggested that all 12 unidentified, mostly nontestifying
officers, would testify to the same factual version of what occurred during the
incident or its aftermath; the same 12 officers had been involved in a case or
cases involving higher stakes such as kilos of cocaine, heroin, and stolen
Maserati parts, but had not risked their careers for the higher stakes case or
cases; and the same 12 officers had mortgages, car loans, and children in
private schools. Although the officers’ financial obligations and experience
were irrelevant to appellant’s guilt, [the prosecutor] argued these factual
matters outside of the record to attempt to establish the veracity of the few
members of the group of 12 officers who testified.” (Woods, supra, 146
Cal.App.4th at p. 115.) In another instance, the prosecutor’s “factually
unsupported argument tended to reinforce the credibility of prosecution
witnesses against the very rational defense argument that it was not
13
plausible that appellant would engage in such brazen criminal behavior.”
(Id. at p. 116.)
In People v. Hall (2000) 82 Cal.App.4th 813, the defense commented on
the fact that the prosecution did not call a second police officer, and the
prosecutor responded, “ ‘You could have heard repetitive testimony from
Officer Tinsley, basically telling you the same thing, that he was there and
recovered the rock, and Williams was there and present for it. And if there
was anything to his testimony, you would have heard from the defense.’ ”
(Id. at p. 816.) The court determined, “the prosecutor went too far when he
told the jury the absent witness’s testimony would have been repetitive. The
effect of this argument was to tell the jury that the witness, if called, would
have testified exactly as Officer Williams did, in a manner favorable to the
prosecution.” (Id. at p. 817.)
The alleged misstatements at issue here are categorically different, and
do not impact the perceived credibility of any witness that did or did not
testify, nor did they suggest that another witness would have testified in
some specific way. Rather, as we have discussed, the statements were fair
commentary on the evidence that was presented and, at most, relied on
logical inference that the jury would have been permitted to make on their
own.
In another case cited by Nieves, People v. Zurinaga (2007)
148 Cal.App.4th 1248, the prosecutor compared the alleged home invasion
robbery of nine college students to the September 11 terrorist attacks and
showed the jury a PowerPoint presentation that included detailed
information about the attack, including the numbers of passengers and crew
that perished. (Id. at p. 1250.) Although the court in Zurinaga did comment
that the detailed information about the September 11 attacks was
14
problematic in part because it was outside the record and the common
knowledge of the jury, the statements the prosecutor made here were in no
way akin to the prosecutor’s argument in Zurinaga. (See id. at p. 1257.)
Based on the foregoing, we conclude that Nieves has not established
that the prosecutor’s statements during closing argument amounted to
prejudicial misconduct. To the extent that the prosecutor did state any facts
that were not in evidence, when those statements are read in context of the
evidence that was presented at trial, and the closing arguments as a whole,
we cannot conclude that “there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
We recognize, as Nieves contends, that the identity of the shooter was
squarely at issue in this case, and that the witnesses were not always
consistent or reliable. But as we have noted, the prosecutor’s statements did
not directly identify Nieves, and particularly not in any manner that was far
outside the record; rather, the prosecutor suggested that the jury make fair
inferences from the evidence in the record. Nieves argues the prosecutor’s
statements improperly “remedied these evidentiary gaps,” but he does not
make any argument as to the relative importance of the alleged gaps, or their
impact on the jury’s consideration of whether Nieves was the shooter.4
4 Given the minimal impact of the alleged statements, we also cannot say
that defense counsel had no tactical reason for failing to object. (See People
v. Aguirre (2025) 18 Cal.5th 629, 704 [“While defendant also argues that this
failure to object amounted to ineffective assistance of counsel, we conclude
that this claim fails because trial counsel reasonably could have decided not
to object to the prosecutor’s argument.”].)
15
B. Section 654
Nieves asserts, as he did in the trial court, that section 654 precluded
sentencing on both counts 1 and 2 because the convictions arose from “one
continuous act.”
Section 654, subdivision (a), provides: “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. An acquittal or conviction and sentence under any
one bars a prosecution for the same act or omission under any other.” As our
high court has frequently explained, “the purpose of section 654 is to ensure
that a defendant’s punishment will be commensurate with his culpability.”
(People v. Correa (2012) 54 Cal.4th 331, 341.)
“ ‘ “Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor.” ’ ” (People v. Vasquez (2020) 44 Cal.App.5th
732, 736–737 (Vasquez).) “The temporal proximity of two offenses is
insufficient by itself to establish that they were incidental to a single
objective.” (Id. at p. 737.) “ ‘The trial court has broad latitude in determining
whether section 654, subdivision (a) applies in a given case.’ ” (Ibid.)
Here, the trial court explained: “the defendant committed two wrongful
acts. In Count 1, the defendant approached a vehicle occupied by the victim
and a female acquaintance from the driver side and shot the victim in the
thigh. In Count 2, the victim exited the vehicle, and the defendant
subsequently shot him in the buttocks. Both counts involve causing serious
harm to the victim. And each count references a separate and distinct act of
extreme violence; therefore, Penal Code section 654 does not apply.”
16
We agree. The two shots were not part of an indivisible transaction.
Nieves had time to stop and reflect while Jose was exiting the vehicle. (See
People v. Trotter (1992) 7 Cal.App.4th 363, 368 [Section 654 did not apply
where “[e]ach shot required a separate trigger pull. All three assaults were
volitional and calculated, and were separated by periods of time during which
reflection was possible.”].) “Section 654 ‘cannot, and should not, be stretched
to cover gratuitous violence or other criminal acts far beyond those
reasonably necessary to accomplish the original offense.’ ” (Vasquez, supra,
44 Cal.App.5th at p. 737.)
C. Sentencing Errors
The parties agree that there are two errors in the abstract of judgments
that this court should address: the great bodily injury enhancement imposed
on count 1, and the $10,000 restitution fine which was not included in the
oral pronouncement of sentence.
On count 1, the trial court imposed both a 3-year determinate term for
great bodily injury under section 12022.7, subdivision (a) and a 25-years-to-
life indeterminate term for personally and intentionally discharging a
firearm and proximately causing great bodily injury under section 12022.53,
subdivision (d).
Section 12022.53, subdivision (f) provides, in relevant part, “An
enhancement for great bodily injury as defined in Section 12022.7, 12022.8,
or 12022.9 shall not be imposed on a person in addition to an enhancement
imposed pursuant to subdivision (d).” Our high court has explained that
“section 12022.53 requires that, after a trial court imposes punishment for
the section 12022.53 firearm enhancement with the longest term of
imprisonment, the remaining section 12022.53 firearm enhancements and
any section 12022.5 firearm enhancements that were found true for the same
crime must be imposed and then stayed.” (See People v. Gonzalez (2008)
17
43 Cal.4th 1118, 1130.) We see no reason why this same analysis would not
apply to the 3-year enhancement under section 12022.7, subdivision (a).
Accordingly, we will exercise our inherent authority to stay the 3-year
enhancement under section 12022.7, subdivision (a).
Next, at sentencing, the trial court stated: “He’s to pay a $10,000
restitution fine. That will be suspended pending a hearing on his ability to
pay.” However, the abstract of judgment for the determinate term imposes
the $10,000 restitution fine, and there is no indication in the record (or the
People’s briefing) that an ability to pay hearing occurred. We therefore
exercise our authority to modify the abstract of judgment to reflect the oral
pronouncement by striking the $10,000 restitution fine pursuant to section
1202.4, subdivision (b). (See People v. Alford (2010) 180 Cal.App.4th 1463,
1466, 1473 [exercising authority to modify judgment, impose sentence, and
stay execution of sentence]; People v. Felix (2009) 172 Cal.App.4th 1618, 1631
[correcting abstract to match oral pronouncement].)
III. DISPOSITION
The matter is remanded to the trial court with instructions to amend
the abstract of judgment to stay the 3-year enhancement under section
12022.7, subdivision (a) on count 1 and to strike the $10,000 restitution fine
under section 1202.4, subdivision (b). The trial court shall forward a certified
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copy of the amended abstract of judgment to the Department of Corrections
and Rehabilitation. The judgment is otherwise affirmed as modified.
KELETY, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
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