Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. KA073083, Bruce F. Marrs, Judge.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steve D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
Appellant Hercules Bernardo Reyes appeals from a resentence following a partial reversal and an order remanding the case for resentencing. He contends the trial court failed to stay a determinate term as required by Penal Code section 654. We agree and affirm with directions.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND
On November 1, 2005, Reyes fatally shot Robert Castro and nearby, Ronald Loaiza shot Anthony Salas, who survived his wound. Salas and Castro were outside of Salas’ house, when Reyes and Loaiza arrived. Reyes invited the men to check out his car and all four men went out to the street. Reyes got into the driver’s seat and Castro got into the front passenger seat. Salas and Loaiza remained outside.
Factual and procedural background are based on the unpublished case, People v. Loaiza (Jan. 9, 2009, B198074) [2009 WL 51037].
At trial, Salas testified that someone turned up the volume on the car radio and then he heard a gunshot inside the car. Salas looked through the car window and saw Reyes holding the grip of a handgun and Castro holding its barrel, struggling with Reyes. At that moment, Loaiza pulled out a revolver and shot Salas. As Salas ran to the back of the house, he heard about four more shots.
Salas, Castro, Reyes, and Loaiza belonged to the Puente gang, albeit to different cliques. At the time of the shooting, all cliques got along with one another. The prosecution theorized the motive for Reyes’ and Loaiza’s actions was revenge for the murder of their cousin, Gabriela Santini. Castro had been detained and interviewed in connection with that crime.
PROCEDURAL BACKGROUND
A jury convicted Reyes of first degree murder, attempted murder, possession of a firearm by a felon, and assault with a firearm. The jury found true gang enhancement allegations and found that in the commission of the attempted murder, a principal personally and intentionally fired a gun, causing Salas great bodily injury; personally and intentionally fired a gun; and personally used a gun. Reyes waived a jury trial on prior conviction and prison sentence allegations, and the trial court found Reyes had two prior serious or violent felony convictions within the scope of the Three Strikes law, one prior serious felony conviction, and that he served a prior prison term.
This appeal addresses those proceedings related to the appellant Hercules Reyes; Loaiza is not a party to this appeal.
The trial court sentenced Reyes to 201 years to life, calculated as follows:
Count 1 (murder) 75 years to life (third strike term)
Firearm enhancement 25 years to life
Prior serious felony conviction enhancement 5 years
Prior prison term served enhancement 1 year
Count 2 (attempted murder) 45 years to life (third strike term)
Firearm (gang principal) enhancement 25 years to life
Count 4 (possession of a firearm by a felon) 25 years to life (third strike term)
Count 5 (assault with a firearm) [stayed] 30 years (third strike term)
Prior serious felony conviction enhancement 5 years
In a previous appeal, this Court affirmed the judgment of guilt but reversed the true findings on the gang enhancements with respect to counts 1, 2, and 5, and directed the trial court to dismiss those allegations. (People v. Loaiza, supra, 2009 WL 51037 at p. *29.) As to count 5 (Pen. Code, § 245, subd. (a)(2)), this Court also found the trial court incorrectly imposed a third strike term and that the trial court had erroneously imposed a second serious felony enhancement. Due to the findings, this Court remanded the case for the limited purpose of resentencing Reyes on count 5 and ordered the trial court to modify Reyes’ sentence on count 2.
On remand, the trial court resentenced Reyes to 159 years to life, calculated as follows:
Count 1 (murder) 75 years to life (third strike term)
Firearm enhancement 25 years to life
Prior serious felony conviction enhancement 5 years
Prior prison term served enhancement 1 year
Count 2 (attempted murder) 25 years to life (third strike term)
Count 4 (possession of a firearm by a felon) 25 years to life (third strike term)
Count 5 (assault with a firearm) [not stayed] 3 years (third strike term)
DISCUSSION
Reyes contends, and the Attorney General concedes, the trial court should have stayed the three-year sentence as to count 5. Reyes maintains the unstayed term violates section 654, Reyes’ rights against double jeopardy, and due process. We agree.
The record shows that neither party objected to the trial court’s failure to stay the sentence under count 5. However, the section 654 multiple punishment claim raised in this appeal is reviewable as an unauthorized sentence, a sentence that could not lawfully be imposed under any circumstance. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 7 [“it is well settled... that the court... imposes an ‘unauthorized’ sentence when it erroneously stays or fails to stay execution of a sentence under section 654”].)
Section 654 prohibits punishment for two crimes arising from a single indivisible course of conduct. Whether “‘a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
The language of section 654 states in relevant part: “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.” (§ 654.)
Here, count 2 (attempted murder) and 5 (assault with a firearm) charged Reyes with Loaiza’s shooting of Salas. There was no basis to infer a separate intent or objection as to the shooting of Salas, since Reyes’ guilt for these counts was premised on the theory that the shooting of Salas was a natural and probable consequence of the murder allegedly committed by Reyes under count 1 (murder). In fact, during the original sentencing, the trial court determined that count 2 and count 5 were based on a single course of conduct, Loaiza’s shooting of Salas, and therefore stayed the lesser sentence under count 5. Similarly, the trial court should have stayed the sentence under count 5 when it resentenced Reyes.
DISPOSITION
The trial court is ordered to stay, pursuant to section 654, the three-year sentence on count 5. The court shall amend the abstract of judgment accordingly, and forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.