P. v. Pena

 

 

 

 

 

 

 

Filed 1/28/14  P. v. Pena
CA2/1

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 ONE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   RONALD PENA,               Defendant and Appellant.

B246900         (Los Angeles County       Super. Ct. No. BA391840)

 

            APPEAL from a judgment of the href="http://www.fearnotlaw.com/">Superior Court of Los Angeles County.  Craig J. Mitchell, Judge.  Reversed in part, affirmed in part, and
remanded for further proceedings.

            Siri Shetty, under appointment by
the Court of Appeal, for Defendant and
Appellant.

            Kamala D. Harris, href="http://www.mcmillanlaw.us/">Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Keith H. Borjon, Supervising Deputy Attorney General, and Joseph P.
Lee, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________

 

 

            Defendant Ronald
Pena appeals from the judgment entered following a jury trial in which he was
convicted of three counts of attempted murder, three counts of assault with a
firearm, and a single count of possession of a firearm by a felon.  Defendant admitted an allegation that he had
suffered a prior serious or violent felony conviction within the scope of the
“Three Strikes” law (Pen. Code, § 667, subds. (b)–(i)) and was sentenced to a
second strike term.href="#_ftn1"
name="_ftnref1" title="">^[1]  Although he was not asked to
admit the allegation, defendant’s sentence included a prior serious felony
enhancement pursuant to section 667, subdivision (a)(1).

            Defendant contends the trial court
erred by denying his motion for a judgment
of acquittal at the close of the prosecution’s case-in-chief with respect to
one of the three counts of attempted murder. 
We conclude one of defendant’s attempted murder convictions must be
reversed because the evidence at the close of the prosecution’s case-in-chief
was insufficient to show that defendant specifically intended to kill more than
two people.  Thus the trial court should
have granted defendant’s motion for acquittal with respect to one of the
attempted murder counts.

            Defendant further contends that he
was not advised of his rights before admitting the second strike allegation (§
667, subd. (b)–(i)) or the prior serious felony enhancement allegation (§ 667,
subd. (a)).  The Attorney General
concedes this point.  We further note
that the trial court only asked defendant to admit the strike allegation, not
the prior serious felony enhancement allegation (§ 667, subd. (a)(1))and the
prosecutor offered no proof of that enhancement allegation.

BACKGROUND

1.         The
prosecution’s case-in-chief

a.         The shooting and
arrest

            On the night of December 14, 2011, at about 9 p.m., 14-year-old Allan C., his 15-year-old brother Luis C.,
and their friend Angel N. were walking towards Santa Monica and Western.  All three boys were members of the Mara
Salvatrucha (MS13) gang, and were within territory claimed by their gang.  At the same time, the 29-year-old defendant  was walking down the same sidewalk in the
opposite direction.

            As defendant passed the boys, he
said “Fuck Mierdas” (an insult to the MS13 gang) and displayed a gun in his
waistband.  Luis told defendant he was “stupid”
because the “police is right there.”  Defendant walked away.  The boys began following defendant at a
distance.  Luis admitted at trial he was
making gang hand signs.

            Defendant
suddenly turned and fired two shots toward the boys, who were 40 to 50 feet
away.  No one was struck.  Luis testified that when defendant shot, the
three boys were alongside one another, each about an arm’s length from the
next.  Allan testified that Angel was
about five feet behind them.  Luis
thought defendant was shooting at him. 
Allan testified the gun was pointed at him and Luis.

            The boys ran away from
defendant and toward several Los Angeles Police Department (LAPD) officers,
including gang officers, who had been conducting a traffic stop and had heard
the shots.  The officers checked to see
if the boys were armed and asked them what happened.  All three boys pointed down the street and
told the officers that “he” or “that guy” shot at them.  Angel described defendant’s clothing.  The officers looked in the direction the boys
pointed and saw defendant walking along Western.

            The officers drove toward defendant,
who ran across the street, then slowed to a fast-paced walk.  The officers saw defendant toss a handgun
into some bushes.  An infrared scanner in
a police helicopter indicated that the gun was hot.  The officers detained defendant and recovered
the handgun, which was a revolver containing two spent casings and one live
round.  Defendant wore a black glove on
his right hand only.

            Allan and Luis separately identified
defendant at a field show-up.  Each told
officers that defendant was the man who fired shots toward them.href="#_ftn2" name="_ftnref2" title="">^[2]

            The prosecutor played a video
recovered from an exterior security camera at a Burger King in the area.  The prosecutor described the video as
depicting defendant shooting with the gun aimed in front of him, not upward.

b.         Expert testimony regarding
gangs

            Officer
Brandon Purece testified as the prosecution’s gang expert, although no gang
enhancement was alleged.  Purece opined
defendant was a member of a small gang called La Raza Loca that did not get
along with any other gangs.  Purece testified
that saying “Fuck Mierdas” to MS13 members was both a challenge and a warning
of impending violence.  Purece further
testified that shooting at rival gang members enhances both a gang’s reputation
and a shooter’s status within his gang.

2.         Defense case

            Clinical
psychologist Dr. Catherine Scarf testified defendant has an IQ of 66, which
indicates “borderline intellectual
functioning.”  Scarf found defendant deficient
in “non-verbal reasoning” and working memory, and “borderline” for “processing
speed.”  She explained that a person with
this level of functioning might be gullible, lack common sense, or fail to understand
what someone is saying and respond inappropriately or illogically, for example
by misinterpreting a threat as being more serious that it actually is.

            Defendant
testified that he was not a gang member and denied that he had ever told police
he was a gang member.

            Defendant
testified that the three boys identified themselves as members of MS13, made
gang hand signs, and asked him where he was from, which defendant understood as
a question about gang membership.  Defendant had been beaten by members of MS13
about a year earlier and had experienced href="http://www.sandiegohealthdirectory.com/">problems with MS13 members since
his years in middle school.  He told the
boys he did not “bang” and kept walking.

            The
boys followed defendant and one of them said he was going to “fuck up”
defendant.  Defendant continued to walk
and ignored the boys until he heard one of them threaten to kill him.  Defendant knew they were “juveniles,” but
there were three of them, and defendant was scared.  He turned and fired two shots into the air.  The boys ran, and defendant crossed the
street.

            Defendant
admitted that after he was in custody he wrote a statement for the police
saying, “‘They were going to kill me so I got scared, and I saw that one of
them was going to pull something from his pockets so I started to go away.’”  He also wrote, “‘I never said I was going to
kill them or anything like that.  I was
just scared for my life, so I fired two shots to the air.’”

            Defendant
explained that he had been drinking brandy and taking methamphetamine for
several days straight.  He was wearing
one glove because it was cold out, but he had lost the other glove.  He was carrying the gun, which he stole from
his drug dealer a few days before, because “people” had threatened him.

            Defendant
denied telling any police officers that he was hunting MS13 members or that he
intended to hurt or kill
the boys.  He admitted suffering a prior
felony conviction for making a criminal threat at his place of employment in 2005,
but he was inebriated and remembered only that he argued with a security
officer.  The parties stipulated that,
because of the prior felony conviction, defendant was precluded from owning or
possessing a firearm.

            Defendant
also presented evidence tending to show that Allan and Luis (or one of them)
participated in an altercation resulting in a href="http://www.sandiegohealthdirectory.com/">head injury to one of their
neighbors in an unrelated incident during the month after the charged shooting.

3.         Prosecution’s case in
rebuttal

            Two LAPD officers
testified that defendant admitted membership in the La Raza Loca gang in 2000
and 2010.

            LAPD Officer
Bryan Delavan, testified that he spoke to defendant after arresting him on the
day of the shooting.  Defendant did not
appear to be under the influence of methamphetamine and did not seem to be “particularly
inebriated.”  Defendant said he belonged
to the “La Raza Trece” gang.  He further
stated that when he was growing up, the MS13 gang was “kind of a problem.”  He did not get along with MS13, and MS13 had
bothered his younger brother.

            On the day after
the shooting, LAPD Officer Brian Oliver spoke with defendant at the jail.  Defendant initiated the conversation and asked
Oliver how much time he would get for “shooting at them.”  Oliver and defendant then spoke about
defendant’s background.  Defendant said
he began hating MS13 when members of that gang picked on, and “jumped” him in
high school.  Defendant told Oliver that
earlier in the week MS13 members jumped his brother, and he wanted them to pay
for what they had done.  A few days prior
to the charged shooting, defendant and some of his friends drove around with a gun,
“hunting” for MS13 gang members in the area of Santa Monica and Western.  Defendant knew that MS13 members congregated at
that location, but he and his friends did not find any MS13 members that day.  Defendant told Oliver that he felt that shooting
an MS13 gang member would cause them to leave his brother alone.

            Regarding the charged shooting, defendant
told Oliver that he thought if he shot one of the boys, the boy would not live;
he was aiming at one that was wearing a long sweat shirt but he would have shot
all three; he had a bullet for each of them; his shots missed because he was a
little drunk.

            The
prosecution also presented additional evidence regarding the 2005 incident
leading to defendant’s criminal threat conviction.

4.         Verdict and sentence

            The
jury convicted defendant of attempted murder and assault with a firearm with
respect to each of the three boys, plus possession of a firearm by a felon.  The jury found defendant personally used a
firearm and personally and intentionally fired a firearm (§ 12022.53,
subds. (b), (c)) in the commission of each attempted murder, and he personally
used a firearm (§ 12022.5, subd. (a)) in the commission of each assault with a
firearm.  Defendant admitted an
allegation pursuant to the Three Strikes law (§ 667, subs. (b)–(i)) that he had
suffered a prior serious or violent felony conviction.  Defendant was not asked to admit, and did not
admit, a prior serious felony enhancement allegation (§ 667, subd. (a)(1)).  The prosecution offered no proof to support
the section 667, subdivision (a)(1) allegation.

            The
court sentenced defendant to prison for 35 years, consisting of a second strike
term of 10 years for the attempted murder of Luis, plus 20 years for the
section 12022.53, subdivision (c) enhancement, plus 5 years for the section
667, subdivision (a)(1) enhancement that had been neither proved nor admitted.  The trial court made the terms on the other
two attempted murders and the possession of a firearm by a felon count run
concurrently and stayed the terms on the assault with a firearm convictions.

DISCUSSION

>1.         Admission of strike and enhancement allegations

a.         Defendant’s
admission

            After
the jury returned its verdicts, the trial court asked defense counsel whether
defendant would “stipulate to the prior conviction of a strike prior within the
meaning of Penal Code section 1170 et seq. and 667.5 et. seq. as well?”  Defense counsel replied, “Yes.”  The court then asked defendant, “[A]re you willing
to admit that within the meaning of the Penal Code, that you have suffered a
prior serious felony in case BA 293630, a violation of Penal Code section
422, that being a prior strike conviction in 2006.  [¶]  Do
you admit that prior conviction?” 
Defendant said, “Yes.” 

b.         Defendant’s admission
of the strike allegation was involuntary, and he did not admit the section 667,
subdivision (a)(1) enhancement allegation

            Defendant
contends his “admission to a prior strike and serious felony conviction” cannot
be deemed to have been voluntary and intelligent because he was not advised of
his rights to a jury trial, confrontation, and the privilege against
self-incrimination, nor was he advised of the consequences of his
admission.  The Attorney General aptly
concedes this contention and asks this court to reverse the true finding on
defendant’s “prior conviction allegation” and remand for a new trial of that
allegation.

            We
agree that the failure to advise defendant of the rights he would relinquish in
order to admit the strike allegation and the section 667, subdivision (a)(1) enhancement
allegation rendered defendant’s admission involuntary.  (People v. Howard (1992) 1 Cal.4th
1132, 1175, 1179; In re Yurko (1974) 10 Cal.3d 857, 863–864.)

            We
further note that the trial court only asked defendant to admit the strike
allegation.  The court did not ask defendant
to admit the section 667, subdivision (a)(1) enhancement allegation, defendant
did not admit it, and the prosecution did not offer any proof of this
enhancement allegation.  The trial court
nonetheless applied the enhancement allegation, adding a five-year enhancement
to defendant’s sentence.

            Accordingly,
we reverse the trial court’s implied findings on both the strike and section
667, subdivision (a)(1) allegations and remand for a new trial upon these
allegations.

>2.         Denial of motion for acquittal

a.         Motion
for acquittal

            At
the close of the prosecution’s case-in-chief, defendant moved for acquittal of
the attempted murder and assault with a firearm charges pertaining to Angel (counts
5 and 6).  The trial court denied the
motion after noting that Luis testified that Angel was “within arm’s reach” of Allan.

            Defendant
contends the denial of his motion for acquittal pursuant to section 1118.1 was
error with regard to the attempted murder charge in count 5 because defendant fired
only two shots from a distance of 40 to 50 feet, no one was struck by the
shots, and the record did not show that all three boys “were directly in the
line of fire,” “two bullets could have struck all three” boys, or defendant “intended
to kill all three with two bullets.”

b.         Evaluating
sufficiency of evidence for a section 1118.1 motion for acquittal

            When
reviewing a claim the trial court erred by denying a motion for acquittal under
section 1118.1, we apply the same standard as when evaluating the sufficiency
of evidence to support a conviction, but we consider only the evidence in the
record at the time the motion was made.  (>People v. Augborne (2002) 104
Cal.App.4th 362, 371; People v. >Smith (1998) 64 Cal.App.4th 1458,
1464.)  Thus, we review the evidence
presented during the prosecution’s case-in-chief in the light most favorable to
the judgment to decide whether substantial evidence supports the conviction, so
that a reasonable jury could find guilt beyond a reasonable doubt.  (People v. Tully (2012) 54
Cal.4th 952, 1006.)

c.         Legal principles
applicable to attempted murder of multiple individuals

            “Attempted
murder requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.”  (People v. >Lee (2003) 31 Cal.4th 613, 623.)  “[A] person who intends to kill can be guilty of
attempted murder even if the person has no specific target in mind.  An indiscriminate would-be killer is just as
culpable as one who targets a specific person.” 
(People v. Stone (2009) 46
Cal.4th 131, 140.)  “‘The act of firing
toward a victim at a close, but not point blank, range “in a manner that could
have inflicted a mortal wound had the bullet been on target is sufficient to
support an inference of intent to kill . . . .”’”  (People v. Smith (2005) 37 Cal.4th 733,
741.)  Where
there are multiple alleged victims, the prosecution must prove that defendant
intended to kill each victim, and the defendant’s guilt must be judged
separately as to each victim.  (>People v. Perez (2010) 50 Cal.4th 222,
230 (Perez).)

            Where
a defendant shoots at a group of people, the maximum number of attempted murder
victims will generally be equal to the number of shots fired, absent evidence
that defendant specifically intended to kill two or
more people with a single shot or specifically intended to kill a
greater number of victims but was
thwarted from firing the
required additional shots by circumstances beyond his control.  (Perez, supra, 50 Cal.4th at
pp. 230–231; People v. McCloud (2012)
211 Cal.App.4th 788, 807 (McCloud) [where
defendants fired 10 shots and 2 victims were killed, evidence supported 8 attempted
murder convictions].)

            For
example, in Perez, >supra, 50 Cal.4th 222, the defendant fired
one shot at a distance of 60 feet, from a car going 10 to 15 miles per hour, at
a group of seven police officers and one civilian whom he believed to be rival
gang members.  The shot struck and
injured one officer.  (50 Cal.4th at pp. 226–227.)  Perez
was convicted of seven counts of attempted murder of a peace officer, one count
of attempted murder, and other offenses. 
The Supreme Court reversed all of the attempted murder convictions for
insufficiency of evidence of intent to kill except the one pertaining to the injured
officer, explaining, “In this case there is name="SDU_231">no evidence that defendant knew or specifically targeted any
particular individual or individuals in the group of officers he fired upon.name=FN4>  Nor is there evidence that he specifically
intended to kill two or more persons with the single shot.  Finally, there is no evidence defendant
specifically intended to kill two or more persons in the group
but was only thwarted from firing off
the required additional shots by circumstances beyond his control.name=F00662022637464>  Without more,
this record will not support conviction of eight counts of premeditated
attempted murder.”  (Id. at pp. 230–231, fns. omitted.) 
Although Perez “endangered the lives of every individual in the group
into which he fired the single shot,” (id.
at p. 225), which supported his eight assault with a firearm convictions,
merely endangering them did not demonstrate an intent to kill.

            The
“kill zone” theory argued by the prosecutor in the trial court and the Attorney
General here addresses specific intent to kill all persons within a certain
zone through use of a weapon so pervasively lethal that it is expected to kill
all persons within the zone.  The “kill zone”
theory first was recognized by the California Supreme Court in >People v. Bland (2002) 28 Cal.4th
313.  The Court held that although the
doctrine of transferred intent is inapplicable to attempted murder (>id. at p. 331), the nature and scope of
an attack directed at a primary victim may support an inference that the
defendant concurrently intended to kill everyone in the kill zone.  Quoting a Maryland case, Bland provided examples of the types of attacks that would support
a theory of concurrent intent to kill, including “‘plac[ing] a bomb on a
commercial airplane intending to harm a primary target on board’” while
ensuring the death of all other passengers as well or attacking the primary
target and his or her companions by means of a spray of automatic weapon fire
or an explosive device.  (>Id. at pp. 329–330.)

            However
the “kill zone” theory does not apply when a defendant merely endangers more
than one person.  As this division
explained in McCloud, >supra, 211 Cal.App.4th at p. 798, “The kill zone theory
thus does not apply if the evidence shows only that the defendant
intended to kill a particular targeted individual but attacked that individual
in a manner that subjected other nearby individuals to a risk of fatal injury.  Nor does the kill zone theory apply if the
evidence merely shows, in addition, that the defendant was aware of the lethal
risk to the nontargeted individuals and did not care whether they were killed
in the course of the attack on the targeted individual.  Rather, the kill zone theory applies only if
the evidence shows that the defendant tried to kill the targeted individual by
killing everyone in the area in which the targeted individual was located.  The defendant in a kill zone case chooses to
kill everyone in a particular area as a means of killing a targeted
individual within that area. . . .  [¶]  The
kill zone theory consequently does not operate as an exception to the mental
state requirement for attempted murder or as a means of somehow bypassing that
requirement.  In a kill zone case, the
defendant does not merely subject everyone in the kill zone to lethal risk.  Rather, the defendant specifically intends
that everyone in the kill zone die.  If some of those individuals manage to survive
the attack, then the defendant—having specifically intended to kill every
single one of them and having committed a direct but ineffectual act toward
accomplishing that result—can be convicted of their attempted murder.”

d.         At the time of
defendant’s motion for acquittal, the evidence supported only two counts of
attempted murder

            At
the conclusion of the prosecution’s case-in-chief, the evidence showed that
defendant had fired two shots in the direction of the three boys, from a
distance of 40 to 50 feet.  The firing of
two shots supported an inference that defendant specifically intended to kill two
boys.  As demonstrated in >Perez, however, the firing of two shots
did not indicate an intent to kill the third boy without evidence that defendant  specifically intended to kill two or more of
the boys with a single shot, or was thwarted from firing the third shot by
circumstances beyond his control such as a malfunction of his gun or a
bystander thwarting him.  Thus, the
firing of two shots supported, at most, two counts of attempted murder.  There was no evidence that defendant specifically intended to kill two or more of the boys with a single shot or specifically
intended to kill all three boys but was thwarted from firing the required
additional shots by circumstances beyond his control.  Nor was there any evidence that it was either
possible, or defendant believed or had reason to believe it was possible, to
kill more than one person with a single shot.

            Although
the police recovered defendant’s revolver, the prosecution introduced no
evidence of its caliber.  Therefore,
there was no evidence indicating defendant had the ability to penetrate two
boys with a single high-caliber round fired from a distance of 40 to 50
feet.  Thus, there was insufficient
evidence at the close of the prosecutor’s case-in-chief to support an inference
that defendant specifically intended to kill all three of the boys.  Accordingly, the trial court should have
granted defendant’s section 1118.1 motion with respect to one of the attempted
murder charges.  Because defendant’s
motion was addressed to the counts naming Angel as the victim, the trial court should
have granted the motion with respect to count 5.

            The
Attorney General’s brief on appeal is deficient in part because it relies upon
matters in defendant’s various statements to the police, which were not introduced
until the prosecution’s rebuttal case.  Because
defendant is challenging the denial of his section 1118.1 motion, not the
sufficiency of evidence to support his convictions, we do not consider evidence
introduced after the section 1118.1 motion.

            The
Attorney General’s brief on appeal also lacks merit to the extent it relies
upon the kill zone theory.  Firing two
shots of unspecified caliber at three boys from a distance of 40 to 50 feet was
not an application of force so pervasively lethal that it is reasonable to
infer defendant intended to kill everyone in the area at which he fired in
order to kill one or more primary targets.

            The
Attorney General also relies upon People
v. Chinchilla (1997) 52 Cal.App.4th 683 and Smith, supra, 37 Cal.4th
733, both of which concluded the evidence was sufficient to support two
attempted murder convictions where the defendant fired a single shot at two
people who were lined up, one behind the other. 
Neither case supports the trial court’s denial of defendant’s 1118.1
motion in this case.

            In
Chinchilla, supra, 52 Cal.App.4th 683, defendant fired a single shot at two
police officers who were crouched, with one “crouched down behind and ‘just
above’” the other.  (Id. at p. 687.)  Although
Chinchilla challenged the sufficiency of the evidence to support two attempted
murder convictions, he “conceded that one shot could support a conviction on
two counts of attempted murder if there was evidence that the shooter saw both
victims.”  (Id. at p. 690.)  The
appellate court concluded it was reasonable to infer that defendant saw both
officers, and held, “Where a defendant fires at two officers, one of whom is
crouched in front of the other, the defendant endangers the lives of both officers
and a reasonable jury could infer from this that the defendant intended to kill
both.”  (Id. at p. 691.)

            If
two of the three boys toward whom defendant fired had been in a single-file
line and defendant had aimed one of his shots at the boy at the front of that
line, the evidence in the present case might support an inference that
defendant specifically intended to kill all three boys.  That was not what happened in this case.  Either all three boys were alongside one
another or Luis and Allan were alongside one another and Angel was somewhere
behind them.  The latter scenario does
not mean that Angel was directly behind Luis or Allan.  Angel may have been behind the gap between Luis
and Allan.  Accordingly, >Chinchilla is distinguishable.

            Similarly,
in Smith, supra, 37 Cal.4th 733, the defendant fired one .38-caliber shot at
the rear windshield of a car pulling away from a curb.  The driver (Smith’s former girlfriend) testified that defendant fired from directly behind her, and her
baby was in an “infant car seat in thename="SDU_233"> backseat directly behind her.”  The bullet struck the driver’s headrest and
barely missed both the driver and the baby.  Just before he shot, Smith had walked up to
the open passenger-side front window and looked inside the car, and defendant
admitted in his trial testimony that he had seen the baby in the car.  (Id. at pp. 736–738.)  The Supreme Court rejected Smith’s contention
that the evidence was insufficient to support attempted murder convictions with
respect to both the driver and her baby, explaining, “The ballistics evidence
established that the large-caliber bullet defendant fired into the vehicle from
a distance of one car length away missed the mother and baby by a matter
of inches.  Defendant’s name="sp_4645_740"> name="citeas((Cite_as:_37_Cal.4th_733,_*746,_1">ownname="SDU_747"> testimony established he knew the baby was in the backseat
positioned directly behind the mother, and hence directly in his line of fire
when he fired the shot into the vehicle.  When the facts are considered under the
standard of review applicable to name="citeas((Cite_as:_37_Cal.4th_733,_*747,_1">this sufficiency of evidence
claim, . . . we find the evidence sufficient to support the jury’s finding that
defendant acted with intent to kill the baby.” 
(Id. at pp. 746–747.)

            >Smith is also distinguishable from the
present case.  Here there was no evidence
that two of the three boys were directly behind one another and in defendant’s
direct line of fire.  Nor was there
evidence of the caliber of defendant’s revolver, and defendant was much farther
than one car-length away from the boys when he shot toward them.

            Given
the state of the evidence at the close of the prosecution’s case-in-chief, the
trial court erred by denying defendant’s section 1118.1 motion with respect to
count 5.  Accordingly, we reverse the
conviction as to that count.  This
reversal does not affect defendant’s conviction of assault with a firearm with
respect to Angel (count 6) or the length of defendant’s sentence because the
term for count 5 runs concurrently with the term on count 1.

3.         Error in authority
for firearm enhancement

            We
note that both the trial court’s sentencing minute order and the abstract of
judgment indicate that the 20-year firearm enhancement was imposed pursuant to section
12022.53, subdivision (e), which was inapplicable in this case.  During the sentencing hearing, the trial
court cited section 12022.53, subdivision (a) as authority for the
enhancement.  The correct authority is
section 12022.53, subdivision (c).  On
remand, the trial court should issue an amended abstract of judgment correcting
this error.

DISPOSITION

            Defendant’s conviction
for the attempted murder of Angel N. (count 5) is reversed for insufficient
evidence and may not be retried.  The
trial court’s implied findings upon the Penal Code section 667, subdivision (a)
and strike (§§ 667, subds. (b)–(i), 1170.12) allegations are reversed and the
cause is remanded for a new trial upon those allegations.  The judgment is otherwise affirmed.  The court is directed to issue an amended
abstract of judgment that includes citation of Penal Code section 12022.53,
subdivision (c) as authority for the 20-year firearm enhancement to defendant’s
sentence.

            NOT TO BE PUBLISHED.

 

                                                                                    MILLER,
J.href="#_ftn3" name="_ftnref3" title="">^*

We concur:

 

            ROTHSCHILD, Acting
P. J.

 

            CHANEY, J.