P. v. Rosales
Filed 12/12/12 P. v. Rosales CA2/7
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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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA PABLO ROSALES,
Defendant and Appellant.
B236053
(Los Angeles
County
Super. Ct. No. BA308417)
APPEAL
from a judgment of the Superior Court of
County. Leslie A. Swain, Judge. Affirmed as modified.
Derek
K. Kowata, 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, Senior Assistant Attorney General, and Steven D.
Matthews, Deputy Attorney General, for Plaintiff and Respondent.
________________________________
INTRODUCTION
This case
comes before us a second time. In August
2006, Pedro Flores was riding his bicycle away from defendant Joshua Pablo
Rosales when defendant shot and killed him.
A jury convicted defendant on one count of second degree murder (Pen.
Code, § 187, subd. (a))
name="_ftnref1" title="">[1] and one count of grossly negligent discharge
of a firearm
(§ 246.3) and found true the alleged firearm-use
enhancements (§ 12022.53, subds. (b), (c) & (d)). The trial court sentenced defendant to an
aggregate state prison term of 40 years to life. Defendant appealed, and this court reversed
the conviction for second degree murder on the ground of instructional error
relating to a theory of felony murder, but affirmed the conviction for grossly
negligent discharge of a firearm. (
B210251) [nonpub. opn.].)
Following a
retrial, a jury convicted defendant of second degree murder and found true the
same firearm-use enhancements. The trial
court sentenced defendant to an aggregate state prison term of 15 years to life
for second degree murder, plus 25 years to life for the section 12022.53,
subdivision (d) firearm-use enhancement.
The court ordered the previously-imposed sentence for negligent
discharge of a firearm to be served concurrently. On appeal, defendant contends the trial court
should have stayed imposition of sentence for grossly negligent discharge of a
firearm pursuant to section 654 and miscalculated his presentence
DISCUSSION
1
of Sentence for Grossly Negligent Discharge of a Firearm Should
Have Been Stayed Pursuant to Section 654
Section 654
prohibits separate punishment for multiple offenses arising from the same act
or from a series of acts constituting an indivisible course of criminal
conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507;
1206.)
to more than one act within the meaning of section 654 depends on the intent
and objective of the actor. If all the
offenses were incident to one objective, the defendant may be punished for any
one of such offenses, but not for more than one.’†(Rodriguez,
supra, 47 Cal.4th at p. 507; accord, People
v. Lewis (2008) 43 Cal.4th 415, 519.)
Generally,
the trial court has broad discretion in determining whether a defendant had
multiple criminal objectives independent of, and not merely incidental to, each
other for purposes of section 654. On
appeal we will uphold the court’s express or implied finding a defendant held
multiple criminal objectives if it is supported by substantial evidence. (See People
v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Defendant
contends, the People acknowledge and we agree the trial court violated section
654 in failing to stay the sentence for grossly negligent discharge of a
firearm. The evidence showed defendant’s
only objective was to kill Flores in repeatedly firing his gun directly at him,
as Flores was pedaling away.
Accordingly, the grossly negligent discharge of a firearm offense arose
out of the same indivisible course of conduct as the second degree murder
offense, and the two crimes were incident to one objective.
2. Defendant Is Entitled to Additional Custody Credit
Under Section 2900.5
for Time Spent in Actual Confinement
At his sentencing hearing,
defendant was awarded 1,833 days of presentence custody credit. Defendant now asserts, and the People agree,
the trial court miscalculated defendant’s presentence custody credit by
omitting one day of the time he spent in actual confinement prior to the
commencement of his sentence. As
defendant acknowledges, section 2933.2 prohibits anyone convicted of murder
from receiving work time or conduct credits.
In contrast, section 2900.5, subdivision (a), provides “[i]n all felony
and misdemeanor convictions . . . all days of custody of the defendant . . .
shall be credited upon his or her term of imprisonment . . . .†(See People
v. Taylor (2004) 119 Cal.App.4th 628, 646-647.) It is undisputed defendant spent 1,834 days
in custody prior to sentencing, having been arrested on August 26, 2006, and
sentenced on September 2, 2011.
Therefore, defendant is entitled to one additional day of presentence
custody credit.
DISPOSITION
The judgment is modified to stay
the sentence on the conviction for grossly negligent discharge of a firearm and
to correct the presentence custody credit from 1,833 days to 1,834 days. As modified the judgment is affirmed. The superior court is directed to prepare a
corrected abstract of judgment and to forward it to the
WOODS,
J.
We concur
PERLUSS, P. J.
ZELON, J.
name="_ftn1" title="">[1]
the Penal Code.
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.â€
