P. v. Rosales
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))[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. (People v. Rosales (Feb. 16, 2010, 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 custody credits. We affirm the judgment as modified.
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