P. v. Suares
Filed 4/25/13 P. v. Suares CA2/4
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 FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
JESSE
SUARES,
Defendant and Appellant.
B241594
(Los Angeles County
Super. Ct. No. BA347720)
APPEAL from a judgment of the Superior Court of
County, Laura F. Priver, Judge. Affirmed.
Gerald Peters, 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, Assistant
Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys
General, for Plaintiff and Respondent.
Jesse Suares
appeals from the judgment entered following his conviction by jury on numerous
counts: (1)
§ 245, subd. (a)(2)); (2) evading an
officer with willful disregard (Veh. Code, § 2800.2, subd. (a)); (3)
Code, § 69); (4) transportation of a controlled substance (Health &
Saf. Code, § 11379, subd. (a)); (5) possession for sale of a controlled
substance
(Health & Saf. Code, § 11378); (6) possession of a firearm by a felon
(Pen. Code, § 12021, subd. (a)(1)); (7) possession of ammunition by a
felon (Pen. Code, § 12316, subd. (b)(1)); (8) leaving the scene of an
accident (Veh. Code, § 20002, subd. (a)); and (9) assault with a
semiautomatic firearm (Pen. Code, § 245, subd. (b)).
in imposing firearm enhancements pursuant to section 12022.5, subdivision (a),
in counts 1 and 9 because use of a firearm is an element of assault with a
firearm and assault with a semiautomatic firearm. He further contends that the court erred in
imposing section 186.22, subdivision (b)(1)(C) gang enhancements on counts 1
and 9 because there was no underlying violent felony. We disagree with the contentions and affirm
the judgment.
FACTUAL AND PROCEDURAL
BACKGROUND
On October 12,
2008, around
10:25 a.m., Raymond Luquin walked out of his home in the City of Los Angeles and saw a car pull up and stop on
the other side of the street. Appellant
was driving the car. Appellant pointed a
gun at Luquin and asked if he was from KAM, a gang. Luquin replied that he was not from anywhere,
and appellant said, “Fuck Kamotes. This
is East L.A. Trece,†a reference to another gang. Appellant then drove away.
Luquin’s mother and sister flagged
down a passing police car and reported the incident. Officers saw appellant, called for backup,
and began following him. Appellant led
officers on a long pursuit on the freeway and city streets until he ran a red
light and crashed into three cars, injuring several people.
Appellant climbed out the car window,
ran away, and fought with officers, but the officers subdued him and took him
into custody. Luquin identified
appellant in a field showup. Officers
discovered about $700 and plastic baggies of methamphetamine in or near
appellant’s shoes, which had fallen off during the altercation. Officers also discovered a handgun and
ammunition in his car.
A gang expert testified about the KAM
and East L.A. Trece gangs and opined, based on appellant’s gang field
identification cards and tattoos, that he was a member of the East L.A. Trece
gang. The officer further opined that
appellant’s pointing of the gun and his possession of methamphetamine were
committed for the benefit of the gang.
Appellant was charged with nine
counts: (1) assault with a firearm
(§ 245, subd. (a)(2)); (2) evading an officer with willful disregard (Veh.
Code, § 2800.2, subd. (a)); (3) resisting an executive officer
(§ 69); (4) transportation of a controlled substance (Health & Saf. Code,
§ 11379, subd. (a)); (5) possession for sale of a controlled substance
(Health & Saf. Code, § 11378); (6) possession of a firearm by a felon
(§ 12021, subd. (a)(1)); (7) possession of ammunition by a felon
(§ 12316, subd. (b)(1)); (8) leaving the scene of an accident (Veh. Code,
§ 20002, subd. (a)); and (9) assault with a semiautomatic firearm
(§ 245, subd. (b)).
The information further alleged as to
all counts that appellant served one prior prison term (§ 667.5, subd.
(b)) and suffered one prior strike pursuant to the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). As to all counts except count 8, it was
alleged that appellant suffered one prior serious felony conviction (§ 667,
subd. (a)(1)).
As to count 2, it was alleged that a
principal was armed with a firearm (§ 12022, subd. (a)(1)), and as to
counts 4 and 5, it was alleged that appellant was armed with a firearm
(§ 12022, subd. (c)). The
information also alleged that Suares personally used a handgun in the
commission of all offenses.
(§§ 12022.5.) The
information contained gang allegations under section 186.22, subdivision
(b)(1)(C) as to counts 1 and 9, and gang allegations under section 186.22,
subdivision (b)(1)(A) as to counts 2 through 7.
The jury convicted appellant on all
counts, except count 5, and found the allegations to be true. The court sentenced appellant to a total term
of 37 years 4 months, calculated as follows.
As to count 9 (assault with a
semiautomatic firearm), the principal term, the court imposed the midterm of
six years, doubled pursuant to Three Strikes, plus a four-year term for the
firearm enhancement (§ 12022.5, subd. (a)), and a 10-year gang enhancement
(§ 186.22, subd. (b)(1)(C)), for a total of 26 years. As to count 1 (assault with a firearm), the
court imposed a term of 20 years (six years, plus a four-year firearm
enhancement (§ 12022.5, subd. (a)) and a 10-year gang enhancement
(§ 186.22, subd. (b)(1)(C)), and stayed the sentence pursuant to section
654. The court imposed a consecutive
16-month term on count 2 and imposed and stayed a four-month term on the
section 12022, subdivision (a)(1) enhancement.
On count 3, the court imposed a consecutive term of 16 months. As to count 4, the court imposed a
consecutive term of two years, plus a one-year term for the firearm enhancement (§ 12022, subd. (c)) and an
eight-month term for the gang enhancement (§ 186.22, subd.
(b)(1)(A)). On count 6, the court
imposed a concurrent seven-year term (four years plus a three-year term for the
gang enhancement (§ 186.22, subd. (b)(1)(A))). As to count 7, the trial court imposed a
concurrent term of four years and imposed and stayed a three-year enhancement
for the gang allegation (§ 186.22, subd. (b)(1)(A).) The court imposed a concurrent six-month term
on count 8. The court imposed a
consecutive term of five years pursuant to section 667, subdivision (a)(1), and
it imposed and stayed a one-year term pursuant to section 667.5, subdivision
(b). Appellant filed a timely notice of
appeal.
DISCUSSION
Appellant challenges his sentence on
two grounds, neither of which we find meritorious.
I. Section
12022.5 Enhancements
Appellant contends that the trial
court erred in imposing section 12022.5, subdivision (a) firearm enhancements
on counts 1 and 9 because the use of a firearm is an element of the offenses of
assault with a firearm and assault with a semiautomatic firearm. Section 12022.5, subdivision (a) states: “Except as provided in subdivision (b), any
person who personally uses a firearm in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment
in the state prison for 3, 4, or 10
years, unless use of a firearm is an element of that offense.†However, subdivision (d) of section 12022.5
provides: “Notwithstanding the
limitation in subdivision (a) relating to being an element of the offense, the
additional term provided by this section shall be imposed for any violation of
Section 245 if a firearm is used.â€
Appellant was convicted of violating
section 245, subdivision (a)(2), assault with a firearm, in count 1, and
section 245, subdivision (b), assault with a semiautomatic firearm, in count
9. Thus, pursuant to section 12022.5,
subdivision (d), the firearm enhancements were properly imposed on both counts.
Appellant relies on
Cal.App.4th 848 (Sinclair), in which
we addressed the application of a one-year armed principal enhancement under
section 12022, subdivision (a)(1) to a section 245 conviction for assault with
a firearm. Section 12022 provides for a
one-year enhancement for “any person who is armed with a firearm in the
commission of a felony.†(§ 12022,
subd. (a)(1).) However, unlike section
12022.5, section 12022 does not contain an exception for a violation of section
245. Sinclair
therefore is inapplicable.
II. Section
186.22 Enhancements
Appellant’s second contention is that
the trial court erred in imposing 10-year gang enhancements on counts 1 and 9
pursuant to section 186.22, subdivision (b)(1)(C) because there was no
underlying violent felony. “Subdivision
(b)(1)(B) of section 186.22 authorizes a five-year enhancement when the
underlying offense is a ‘serious felony,’ as defined in section 1192.7,
subdivision (c); in addition, subdivision (b)(1)(C) of section 186.22
authorizes a 10-year enhancement when the underlying offense is a ‘violent
felony,’ as defined in section 667.5, subdivision (c). Subdivision (c)(23) of section 1192.7 includes
as a serious felony ‘any felony in which the defendant personally used a
dangerous or deadly weapon,’ and thus encompasses assault with a firearm
[citation].†(Sinclair, supra, 166
Cal.App.4th at p. 856.) Assault with a
firearm is not listed as a violent felony in section 667.5, subdivision (c),
but the statute defines “violent felony†to include “any felony in which the
defendant uses a firearm which use had been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.†(§ 667.5, subd. (c)(8).)
Appellant’s argument that the 10-year
gang enhancement should not have been imposed is based on his argument that
section 12022.5 was not applicable to counts 1 and 9. He again relies on Sinclair, in which we held that the court was required to impose
only the five-year gang enhancement of section 186.22, subdivision (b)(1)(B)
rather than the 10-year enhancement in subdivision (b)(1)(C). (Sinclair,
supra, 166 Cal.App.4th at p. 856.)
As discussed above,
firearm allegation in that case was for a person armed with a firearm under
section 12022, not the firearm allegation for personal use of a firearm under
section 12022.5. Section 667.5,
subdivision (c)(8) specifically includes in its purview a felony in which
firearm use has been charged and proved as provided in section 12022.5. (§ 667.5, subd. (c)(8).) Here, the allegation that appellant personally
used a firearm pursuant to section 12022.5 was charged and found true. We therefore reject appellant’s contention
that the trial court erroneously imposed the 10-year gang enhancements under
section 186.22, subdivision (b)(1)(C).
The
judgment is affirmed.
WILLHITE,
J.
We
concur:
EPSTEIN,
P. J.
SUZUKAWA,
J.
name="_ftn1" title="">[1] Count 5 was dismissed on the People’s
motion after the case was submitted to the jury.
name="_ftn2" title="">[2] All further statutory references are
to the Penal Code unless otherwise specified.
