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P. v. Contreras

P. v. Contreras
03/11/08



P. v. Contreras



Filed 2/19/08 P. v. Contreras CA2/3



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,



Plaintiff and Respondent,



v.



MARCOS A. CONTRERAS,



Defendant and Appellant.



B197761



(Los Angeles County



Super. Ct. No. TA068469)



APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge. Affirmed with directions.



Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant.



No appearance for Plaintiff and Respondent.



Marcos A. Contreras (Contreras)[1]appeals from the judgment entered following a jury trial which resulted in his conviction of first degree murder (Pen. Code, 187, subd. (a)),[2]and five counts of attempted, willful, deliberate premeditated murder ( 664 & 187, subd. (a)), during each of which a principal personally and intentionally used and discharged a firearm proximately causing death ( 12022.53, subds. (b), (c), (d) & (e)(1)), and the finding that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(C)). The trial court sentenced Contreras to 75 years to life in prison. We affirm the judgment.



FACTUAL AND PROCEDURAL BACKGROUND



1. Facts.



At approximately 6:30 p.m. on January 19, 2003, Alejandro Tinoco (Tinoco) parked his Blazer K5 automobile in front of his Bellflower home. The car was in good condition and both the front and rear license plates were attached. On the morning of January 20, 2003, Tinoco reported that the Blazer had been stolen. Tinoco never gave Contreras permission to drive the Blazer.



On January 20, 2003, Ramona Annis (Annis) lived with her boyfriend, Earvin Ferguson (Earvin),[3]at one of two houses occupied by the Ferguson family at 14524 and 14528 South Harris Avenue in Compton. The two houses are next door to one another and several members of the family live in each home. At approximately 7:00 that morning, Annis was standing by the window looking outside when she saw a white Bronco drive by and hit a black car parked in front of the house. The Bronco kept driving until it reached the end of the block, then turned around and drove back. As the Bronco passed in front of the Fergusons home, it slowed down and its occupants appeared to be looking toward the house. After the car then turned a corner, Annis woke up Bub, Earvins daughters boyfriend, and told him that someone had hit his car. However, because she believed something was going on, Annis told Bub not to go out there. When Annis then saw Earvins son, Corey Ferguson (Corey), walking outside, she told him to get back in the house.



Annis told several family members what she had seen and they all wanted to run outside [to] find out what was going on. Among others, Corey, Earvin, Earvins daughter Lakeesha Ferguson (Lakeesha), Bub, young L.F. and seven-year-old Horace all went outside in front of the house. Bub was standing in the street, looking at his car. Other family members were either in the street or on the sidewalk. Annis continued to look out the window and saw the white Bronco again driving toward the house. This time she saw men holding handguns out the [back and front passenger side] window[s.] Earvin told Annis to get down on the ground. As Annis did so, she heard shooting outside. Annis remained on the floor until Earvin came into the house holding Horace, who had been shot. Annis did not see who shot who.



George P. was 12 years old on January 20, 2003. That morning, he, his brother and his cousin were inside their home on Harris Avenue playing monopoly when George P. heard what sounded like a car crash. George P. looked out the window and saw a white car speeding off. Most of George P.s family had gone outside to see the damage to the car that had been hit. Approximately five minutes later, George P. saw the white car drive back by the house. One of the cars three occupants was pointing a gun out the back window. At the time, George P. described the gun as a big gun. To George P., it looked like a large, black automatic machine gun [with] a silencer on the end. When the car, which George P. described as a white, two-door Bronco, was directly in front of the house, George P. heard between 10 and 30 gunshots. As George P. watched, he saw his seven-year-old cousin, Horace, who had been hiding behind a tree in front of the house, fall to the ground after having been shot. George P. ran outside, saw that Horace was bleeding, then ran back inside the house and telephoned 911.



Minerva Gonzalez (Gonzalez) was inside the house on Harris Avenue where she lived with her boyfriend, Earvin Ferguson, Jr., when she heard what sounded like a car hit another car. Gonzalez and several others, including Lakeesha, Lakeeshas boyfriend, Bub, Earvin, Corey and two small children, Horace and L.F., went outside to the front of the house to see what had happened. Gonzalez saw a white Blazer speeding away. She and most of the others then gathered in the street, next to the damaged car. The Blazer had driven approximately one-half block when it turned around and began to drive back toward Gonzalez and the others. At least one of the four occupants Gonzalez saw in the white Blazer was smiling as he began shooting into the group of people gathered in the street. After passing the house, the car turned around and made a third pass, again shooting at the people in front of the house. Gonzalez, who had hidden behind a truck next to a gate, did not see anyone in the Ferguson family shoot back at the white car. In all, Gonzalez heard approximately 20 shots fired.



On the morning of January 20, 2003, Earvin was awakened by a crashing noise in front of his house. Earvin and other family members, including his son Corey, went outside to inspect the car that had been hit. Earvin had a gun in his pocket because this gang[, the 70s,] kept picking with [his] family and they ha[d] been there at [his] house quite a few times, leaving a couple of [his] nephews laying down before. One of Earvins nephews had been killed in front of the house just three weeks before the car crash.



After a short time, Corey looked up the street and said, Thats the 70s right there[,] and There they go right there. Earvin looked and saw a white truck Bronco on a small side street just up the block. After revving its engine, the car turned and drove toward the group standing by the car. Earvin, who thought he was about to be the victim of a drive-by shooting, told everyone to get somewhere and hide. As the white Bronco drove by, Earvin saw shooting come from the passenger side of the car. He did not know if one of the weapons was a shotgun or an assault rifle. Earvin, who by this time was standing behind his own car, a brown Bronco, fired two shots from his revolver at the white Bronco as it passed by. Earvin believed the occupants of the white Bronco were shooting directly at him. There was a bullet hole in his brown Bronco and he saw holes in the ground nearby. Earvin believed the occupants of the white Bronco fired first and fired a whole lot of gunshots. Earvin saw Bub, who was standing behind a white van parked in front of one of the Harris Avenue houses, fire an automatic handgun at the white Bronco.



After the white Bronco passed by, Earvin looked over to see Horace, his seven-year-old nephew, lying on the ground. Earvin ran over to Horace, picked him up, took him inside the house and told someone to call 911.



Corey testified that on January 20, 2003, he was living at 14528 Harris Avenue. At approximately 8:00 a.m. that day, Corey was in the living room when he heard what sounded like a car crash. Corey, who was carrying a gun in his pocket, went outside to see what had happened and saw a white Bronco next to a black Caprice. As the Bronco then slowly drove away, Corey could see that there were three or four people inside. One individual in the back seat of the car noticed Corey. When Corey then saw the Bronco turn around and head back toward the black car, he believed the individuals inside the Bronco intended to apologize for the crash to the car. Corey stepped outside the gate surrounding the house and onto the sidewalk in front of the driveway. As the Bronco approached, it began to swerve from side to side. Corey, wondering who would drive in such a manner, looked at the driver of the car and recognized him as Marcos Contreras.[4] Corey had at one time been friends with Contrerass older brother and had gone to elementary school with Contreras. Corey knew Contreras was a member of the CV70s gang.



Corey belonged to a clique called the Natural Born Players. Although its members did not consider their group a gang, the Natural Born Players and the CV70s gang were enemies. According to Corey, the CV70s mistakenly believed the Natural Born Players were responsible for the killing of a pregnant woman associated with the CV70s.



As the white car drove slowly past Corey, Contreras gave Corey the look which indicated he was coming back. After the Bronco turned a corner and drove out of sight, Corey went inside the house, woke up Bub, whose car had been hit by the Bronco, and told him that his car had been struck by the 70s. Corey, Bub and several other family members then went outside to see the damage to Bubs car.



Corey again saw the white Bronco when it turned onto Harris from a side street approximately four houses away from the Ferguson homes. After Corey informed his family that the Bronco was the car that had hit Bubs car, the group began to walk slowly from the street to the sidewalk. When the Bronco got closer to the group, Corey saw the barrel of a gun, which was too long to have been a handgun, sticking out of the front passenger side window. The occupants of the Bronco then start[ed] shooting at Corey and the other family members. The man sitting in the front passenger seat was the first to shoot. When the shooting started, each member of the Ferguson family went [their] own way. Corey and his father, Earvin, ducked behind Earvins brown Bronco parked in the front yard of Earvins house. Corey looked over and saw that his cousin, seven-year-old Horace, was on the ground. At that point, Corey started shooting at the white Bronco with his .25 automatic handgun. He fired seven shots. Earvin also shot at the Bronco, emptying his five shot .38 revolver. Corey saw Bub shoot at the Bronco with his .22 semiautomatic handgun.



At approximately 10:00 a.m. on January 20, 2003, Los Angeles Deputy Sheriff Cody Signater (Signater) received a call indicating a shooting had occurred. The deputy reported to the designated location to find approximately 30 people milling about in front of a house, in the driveway and around a vehicle. Some of the people were yelling loudly and pointing. Signater described the scene as pandemonium.



Signater ordered the people standing about to go inside the house. Signater then stopped one young man, Corey, who was trying to drive away from the scene. The deputy directed Corey to get out of the car and go inside the house. As Signater walked toward the house, he saw gun shell casings on the street and the lawn. When Signater was then informed that a boy had been shot, he stepped inside the doorway to the house and saw a young boy lying on the floor, bleeding. The deputy called for an ambulance.



Ballistics expert Manuel Munoz (Munoz) collected 18 items from inside and around the Ferguson homes, including bullet fragments, cartridges, an empty magazine and an automatic handgun. Bullet fragments and holes found around the property were consistent with someone in the street shooting at the house[s]. Taking into account all the evidence gathered, Munoz was of the opinion that at least four types of guns had been fired during the incident: a .25 auto, a .38/.357 magnum, a .40 Smith & Wesson, and a 12-gauge shotgun.



Dr. Ajay Panchal (Panchal) performed an autopsy on the body of seven-year-old Horace. The doctor concluded the cause of Horaces death was a shotgun wound to the neck and torso. Panchal recovered from Horaces body seven deformed, copper-coated lead pellets. Due to the nature of the wounds, Panchal concluded the gun had been shot from above and at least four feet away from Horace. Firearms expert Munoz estimated Horace had been shot from between 15 and 25 feet away.



At approximately 9:00 a.m. on January 20, 2003, Los Angeles County Deputy Sheriff Reginald Meredith found the white Chevy Blazer driven by Contreras parked on a street several blocks south of where the shootings had occurred. The vehicles license plates had been removed.



Los Angeles County Deputy Sheriff Mario Cortez (Cortez) works in the sheriffs department crime lab. Cortez went to a tow yard where he processed a white, two-door Chevy Blazer Silverado. Cortez noted that the right fender of the Chevy had black paint on it as if the paint had transferred to the white truck when it crashed into a black car. Cortez then checked the Chevy for fingerprints. Cortez lifted ten latent prints from the vehicle. Several latent prints were found on the inside passenger side sliding window of the removable shell cover[,] next to the latch . . . . Another latent print was found on the outside of the passenger side sliding window. Cortez was able to lift another latent print from the outside rear tailgate window of the vehicle. Latent prints lifted from the truck matched prints taken from Contreras.



Ballistics expert Munoz examined bullet holes in the Chevy Silverado 4x4 and determined they were consistent with someone from the house area having shot at the truck. One bullet hole indicated the shooter had been in front of the truck. Another bullet hole indicated someone had shot at the truck from behind it. No ballistic, or firearm evidence, was found inside the Chevy.



Peter Hecht (Hecht) is a detective for the Los Angeles County Sheriffs Department and is assigned to gang investigations at the Compton Sheriffs Office. Hecht is a gang expert and has for the last several years been assigned to follow the activities of the CV70s, or Compton Varrio Setentos, gang. Taking into account several factors, including his prominent gang tattoos and the location of his arrest, a hangout for . . . CV70 gang members, Hecht was of the opinion that, at the time of the shooting at the Fergusons house in January of 2003, Contreras was a member of the CV70s gang.



As to Corey, Hecht testified that he had always denied being a gang member. However, the detective stated that based on his association with other individuals and . . . his activities, the tagging, the using the red paint, the P that they use in Natural Born Players, based on all those things and the fact that gang members dont really allow taggers to be as active as the Natural Born Players were in their community, Corey Ferguson, at the very least, is an associate of the Lueders Park Piru gang . . . .



2. Procedural history.



On March 2, 2006, Contreras was charged by information with one count of murder ( 187, subd. (a)), during which a principal was armed with a firearm, a shotgun ( 12022, subd. (a)(1)), and a principal personally and intentionally used and discharged a firearm, a shotgun, proximately causing great bodily injury and death ( 12022.53, subds. (b), (c), (d) & (e)(1)). It was further alleged Contreras committed five attempted, willful, deliberate, premeditated murders ( 664 & 187, subd. (a)), during each of which a principal was armed with a firearm, a shotgun ( 12022, subd. (a)(1)), and a principal personally and intentionally used and discharged a firearm, a shotgun or handgun ( 12022.53, subds. (b), (c) & (e)(1)).[5] Finally, it was alleged pursuant to section 186.22, subdivision (b)(1)(C), that the offenses alleged in counts one through six were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. Contreras waived arraignment, a reading of the information and a statement of his constitutional rights, entered pleas of not guilty to each of the alleged charges and denied the special allegations.



On March 15, 2006, Contreras made a motion to set aside the information pursuant to section 995. Contreras argued there was no evidence at the preliminary hearing to indicate the shooting in this matter was gang related. Moreover, the evidence could have reasonably shown that the gun battle which occurred was initiated by the purported victims. The prosecutor argued there had been sufficient evidence to lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion Contreras was guilty of the murder and attempted murders charged. At proceedings held on April 7, 2006, the trial court denied Contrerass motion.



At pretrial proceedings held on January 18, 2007, defense counsel made a motion in limine, arguing that the trial court should prohibit any reference to gang rivalry between the victims and Contreras. The trial court denied the motion, finding that the probative value of such evidence was not outweighed by its potential for prejudice.



On January 22, 2007, at proceedings held outside the presence of the jury, counsel for Contreras objected to evidence of slides the prosecutor intended to present to show that there was a war . . . going on between the CV70 gang and the Piru gang. Defense counsel argued the slides and testimony were unnecessarily inflammatory and irrelevant to the present case. The prosecutor indicated that [r]umor on the street [was] that the Ferguson family [had been] directly responsible for [the] death of a young, pregnant woman who was associated with the CV70 gang. The slides contained, among other images, photographs of all the people that [had] been killed at or near the house of the victim in this case. The prosecutor continued, So once the rumor on the street was that the Ferguson family was responsible for that girls death, it became open season on the Ferguson family. The prosecutor stated the Peoples position was that Contreras was acting in furtherance of this goal, to . . . wipe out the Ferguson family, when he drove to their house, crashed into a car in front of the house knowing that all of the family members would come outside to see what had happened, then drove back by the house and shot at whoever was standing outside. After viewing each of the over 50 slides, the trial court ruled that some of them were either irrelevant or more prejudicial than probative and could not be shown. The remainder of the slides, including those taken by the coroner of the seven-year-old murder victim, could be shown to the jury.



In the middle of trial, on January 25, 2007, Juror No. 3 approached the trial court and indicated that he had seen in the courthouse hallway a gentleman accompanying two women who had been consistently observing the trial. Juror No. 3 recognized the man, who had tattoo sleeves down . . . both [his] arms and a long handlebar mustache, as someone he had seen on the street where he, the juror, lives. Although the man did not say anything to Juror No. 3, he stared at the juror for some time. Outside the presence of Juror No. 3, it was determined that the man was Frederick Joe Lona (Lona), the brother of Contrerass mother. According to the prosecutor, Lona had been recorded on [a] wire tap talking about the CV70 [gang] numerous . . . times, and his house [had] just recently [been the subject of] a search warrant. The prosecutor concluded Lona was neck deep in CV70. When Juror No. 3 then indicated that, if the gentleman he had seen would be attending the trial, it would, out of concern for the safety of his family, affect his ability to remain impartial and fair, the trial court thanked the juror for his service and excused him from any further duties as a juror in the trial. Counsel then stipulated that Juror No. 3 was excused for legal cause. Alternate Juror No. 1 was substituted in as Juror No. 3.



During a discussion regarding jury instructions, defense counsel indicated he preferred CALJIC instructions over the newer, CALCRIM instructions. The trial court indicated that, although counsels objection would be noted, it intended to instruct the jury with CALCRIM. Defense counsel then made a motion for a mistrial, arguing that CALCRIM instructions do not accurately state the law. The trial court denied the motion.



Out of the presence of the jury, defense counsel asserted that events which occurred after the January 20, 2003 shooting were prejudicial and irrelevant. In particular, counsel objected to the fact that the jury heard evidence indicating Contreras was arrested in 2006, on an entirely different charge, with other CV70 gang members. Counsel was afraid the jury would find Contreras guilty of the present charges by [his] association [with CV70 gang members] at the time of his arrest. The trial court overruled counsels objection to the evidence, finding it more probative than prejudicial.



At the end of the prosecutions case, defense counsel made a motion to dismiss pursuant to section 1118.1. Counsel, arguing that the prosecutions witnessess testimony had been inherently incredible and contradictory, asserted the People had made no reasonable showing that Contreras was responsible for the charged murder and attempted murders. The trial court denied the motion, indicating there was sufficient evidence to support the theories proffered by the People, including murder, murder by provocative act, [and] felony murder. The court continued, The evidence is disputed on many of the grounds and on some of the factors, but there is sufficient evidence for the jury to make this determination.



After both parties had completed argument and the jury had begun deliberating, the trial court, over defense counsels objection, allowed the People to file an amended information which struck the allegation made pursuant to section 12022, subdivision (a)(1) that, should the jury find Contreras was armed with a firearm during the murder and attempted murders, he would be subject to a one-year enhancement as to each count. Contreras was then arraigned on the amended information. He entered a plea of not guilty to the substantive offenses of murder and attempted murder and denied the special allegations.



The jurors began their deliberations on February 8, 2007. They reached verdicts on February 9.



Sentencing proceedings were held on March 5, 2007. For Contrerass conviction of first degree murder, the trial court imposed a term of 25 years to life in prison. Since first degree murder is a violent felony that is punishable by imprisonment for life, the trial court determined Contreras was not subject to the gang enhancement alleged pursuant to section 186.22, subdivision (b).[6] For the finding a principal personally and intentionally discharged a firearm and proximately caused death pursuant to section 12022.53, subdivisions (d) and (e)(1), the trial court imposed a consecutive term of 25 years to life. With regard to the sentences prescribed in section 12022.53, subdivisions (b) and (c), the court imposed, then struck the enhancements pursuant to section 1385. The trial court stated, [T]he sentence imposed on section 12022.53[, subdivision] (d) will produce the longest term.[7] Accordingly, the trial court imposed an aggregate term of 50 years to life in prison for Contrerass conviction of murder as alleged in count one.



As to count two, the attempted murder of Corey Ferguson, the trial court imposed, then stayed pursuant to section 654, the middle term of seven years in prison. The court then noted that the jury further found the special allegation true in count [two], that the offense was committed willfully and with deliberation and premeditation within the meaning of . . . section[s] 664[, subdivision] (a) and 189. Consequently, pursuant to section 664[, subdivision] (a), the [trial] court impose[d] a sentence of life with the possibility of parole.[8] The trial court further noted that the jury had found the section 186.22, subdivision (b) gang allegation to be true. The court continued, It was also alleged and found to be true that a principal in the offense other than [Contreras] committed the acts specified in . . . sections 12022.53[, subdivisions] (b) and (e) and (c) and (e) and (d) and (e). Therefore, a term of 25 years to life is added to the term previously pronounced for this offense under [section] 12022.53[, subdivision] (d), and the court strikes the punishment per section 1385 regarding the [section] 186.22[, subdivision] (b) [gang enhancement] and [the enhancements provided for in section] 12022.53[, subdivisions] (b) and (c) on the basis that the sentence imposed on section 12022.53[, subdivision] (d) will produce the longest term. [Accordingly,] [t]he aggregate sentence on count [two] is 25 years to life, which shall run consecutive[ly] to [the sentence imposed as] to count [one].



As to the jurys findings Contreras committed attempted murder in counts three, four, five and six, the trial court imposed, then stayed pursuant to section 654, terms of seven years as to each count. Since the jury found true the special allegations, that the attempted murders were committed willfully, deliberately and with premeditation within the meaning of sections 664, subdivision (a) and 189, [p]ursuant to . . . section 664[, subdivision] (a), the [trial] court impose[d] a sentence of life with the possibility of parole on each separate count, three, four, five and six. After indicating it had considered the factors described in California Rules of Court, rules 4.424 and 4.425, the trial court determined the sentences should run concurrently to each other and the sentences imposed as to counts one and two.



The trial court noted that, with regard to counts three, four, five and six, the jury also found true the section 186.22, subdivision (b) gang allegation and the allegations Contreras committed the acts specified in section 12022.53, subdivisions (b), (c), (d) and (e). Accordingly, the trial court imposed four separate and individual terms of 25 years to life[,] added to the four life terms previously pronounced for counts three, four, five and six. The court then struck the punishment pursuant to section 1385 regarding the [section] 186.22[, subdivision] (b) and [section] 12022.53, [subdivisions] (b) and (c) [findings] on the basis that the sentence imposed on section 12022.53[, subdivision] (d) [would] produce the longest term. Thus, the aggregate terms on counts three, four, five, and six, are four separate terms of life with the possibility of parole and four separate terms of 25 years to life, all of which are to run concurrently to the punishment imposed for counts one and two. In total, the trial court sentenced Contreras to a term of 75 years to life in prison.



The trial court ordered Contreras to pay $10,490 (the cost of Horaces medical bills and funeral expenses) to the State Victims Compensation Board ( 1202.4, subd. (f)). The court then imposed a restitution fine in the amount of $10,000 ( 1202.4, subd. (b)), a $20 court security fee ( 1465.8, subd. (a)(1)) and a suspended $10,000 parole revocation restitution fine ( 1202.45). Contreras was awarded presentence custody credit for 520 days actually served. ( 2933.2, subd. (a).)



Contreras filed a timely notice of appeal on March 5, 2007.



This court appointed counsel to represent Contreras on appeal on July 23, 2007.



CONTENTIONS



After examining the record, counsel for Contreras filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.



By notice filed December 14, 2007, the clerk of this court advised Contreras to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider. No response has been received to date.



REVIEW ON APPEAL



We have examined the entire record and discovered an error on the abstract of judgment. On page 2, there is a notation which reads: As to counts 3, 4, 5, & 6, the court imposes four separate and individual terms of 25 years to life pursuant to Penal Code section 12022.53(b) and (e), (c) and (e), and (d) and (e) to run concurrent to counts 1 and 2. Since the trial court struck the sentences imposed pursuant to subdivisions (b) and (c) of section 12022.53, the notation should read: As to counts 3, 4, 5, and 6, the court imposes four separate and individual terms of 25 years to life pursuant to Penal Code section 12022.53, subdivisions (d) and (e) to run concurrently to counts 1 and 2. Accordingly, we will order the abstract of judgment corrected. In all other respects, we are satisfied Contrerass counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)



DISPOSITION



The judgment is affirmed. The trial court is directed to correct the abstract of judgment by deleting the phrase which appears on page 2 and states, As to counts 3, 4, 5, & 6, the court imposes four separate and individual terms of 25 years to life pursuant to Penal Code section 12022.53(b) and (e), (c) and (e), and (d) and (e) to run concurrent to counts 1 and 2, and to replace it with the phrase, As to counts 3, 4, 5, and 6, the court imposes four separate and individual terms of 25 years to life pursuant to Penal Code section 12022.53, subdivisions (d) and (e) to run concurrently to counts 1 and 2. A corrected, certified copy of the abstract of judgment is to be forwarded to the Department of Corrections.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



CROSKEY, Acting P. J.



We concur:



KITCHING, J.



ALDRICH, J.



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[1] Contreras, who was a minor at least 16 years of age at the time the offenses were committed, was tried as an adult pursuant to Welfare and Institutions Code section 707, subdivision (d)(1).



[2] All further statutory references are to the Penal Code unless otherwise indicated.



[3] We refer to members of the Ferguson family by their first names, not out of any disrespect, but for the sake of clarity.



[4] At trial, Corey again identified Contreras as the driver of the white car.



[5] Contreras was charged with the murder of Horace Ferguson. He was charged with the attempted murders of Corey Ferguson, Lakeesha Ferguson, Earvin Ferguson, Davion Smith (also known as Bub), and L.F.



[6] Subdivision (b)(4) of section 186.22 provides in relevant part: Any person who is convicted of a felony enumerated in this paragraph 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [] (A) The term determined by the court pursuant to Section 1170 for the underlying conviction . . . or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. Subparagraphs (B) and (C) refer to, among other crimes, home invasion robberies, carjacking, extortion and threats to victims and witnesses.



[7] Section 12022.53, subdivision (b) provides in relevant part: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), [including attempted murder,] personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.



Subdivision (c) of section 12022.53, provides in relevant part: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), [including attempted murder,] personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.



Subdivision (d) of section 12022.53 provides in relevant part: Notwithstanding any other provision of law, any person who, in the commmission of a felony specified in subdivision (a), [including attempted murder,] . . . personally and intentionally discharges a firearm and proximately causes great bodily injury, . . . , or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.



Subdivision (e)(1) of section 12022.53 provides: The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [] (A) The person violated subdivision (b) of Section 186.22. [] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).



Subdivision (e)(2) of section 12022.53 provides: An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.



Subdivision (f) of section 12022.53, provides in relevant part: Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.



8 Section 664, subdivision (a) provides in relevant part: If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. . . .





Description Marcos A. Contreras (Contreras)[1]appeals from the judgment entered following a jury trial which resulted in his conviction of first degree murder (Pen. Code, 187, subd. (a)),[2]and five counts of attempted, willful, deliberate premeditated murder ( 664 & 187, subd. (a)), during each of which a principal personally and intentionally used and discharged a firearm proximately causing death ( 12022.53, subds. (b), (c), (d) & (e)(1)), and the finding that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(C)). The trial court sentenced Contreras to 75 years to life in prison. Court affirm the judgment.

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