Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS189535 Raymond Edwards, Jr., Judge.
McDONALD, J.
In this second appeal arising out of the conviction and sentencing of defendant Adrian Nathaniel Cortez for a gang-related killing, Cortez contends (and the People concede) the trial court's sentence was erroneous because it did not stay the sentence imposed as to count 1 and did not correct Cortez's custody credits. Additionally, the People affirmatively contend the trial court, by neglecting to impose a consecutive term for an enhancement, imposed an unauthorized sentence.
PROCEDURAL BACKGROUND
A. The Original Proceedings
In the original proceedings, the jury found Cortez (along with codefendant Jahaziel Fausto) guilty of conspiracy to commit assault with a deadly weapon or with force likely to produce great bodily injury (Pen. Code, §§ 182, subd. (a)(1), 245, subd. (a)(1) (count 1)) and first-degree murder (§ 187, subd. (a) (count 2)). (People v. Cortez (Oct. 2, 2008, D049716) [nonpub. opn.], pp. 1-2 (CortezI).) With respect to count 1, the jury found each defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). With respect to count 2, the jury found (1) each defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and (2) each defendant was a principal in the offense and at least one principal personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivisions (d) and (e)(1). The trial court sentenced Cortez to a total term of 76 years to life in prison. (Cortez I, at p. 2.)
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, this court affirmed the judgment of conviction, but reversed and vacated various aspects of the sentence and remanded the matter for resentencing in accordance with the directions provided by this court. (Cortez I, supra, D049716, at pp. 41-55.)
B. The Second Sentencing Proceeding
On remand, the trial court sentenced Cortez to 51 years to life on count 2, composed of a 25-year-to-life sentence doubled under the three strikes law, and a one-year consecutive term for the prior prison term allegation.
However, the court at resentencing did not correct the custody credits as directed by the remand order (Cortez I, supra, D049716, at pp. 54-55), and did not impose any term for the enhancement under section 12022.53, subdivisions (d) and (e)(1) appended to count 2. Additionally, although the original sentencing court had stayed the sentence on count 1 under section 654 (Cortez I, at p. 42), and the probation report prepared for the second sentencing court reiterated that section 654 applied to count 1, the second court instead sentenced Cortez to a two-year concurrent sentence as to count 1.
EVALUATION
A. The Sentence on Count 1 Must Be Stayed Under Section 654
Cortez contends, the People concede, and we agree, that because the objective of the conspiracy charged in count 1 was no broader than the substantive offense in count 2 on which Cortez was convicted and sentenced, section 654 required the sentence on count 1 be stayed. On remand, the court shall direct that the sentence on count 1 be stayed under section 654.
B. The Abstract of Judgment Must Be Amended to Correct the Custody Credits
In Cortez I, this court observed, "The People concede that the trial court orally stated that Cortez was entitled to 534 days of total custody credits, but that the relevant minute order and abstract of judgment list 533 days of total custody credits. On resentencing, the trial court is directed to ensure that the sentencing minute order and abstract of judgment properly state the number of days of custody credits." (Cortez I, supra, D049716, at pp. 54-55.) Cortez asserts, and the People concede, the second sentencing court erred by not following this instruction. On remand, the trial court is directed to ensure that the sentencing minute order and abstract of judgment properly state the number of days of custody credits.
C. The Court Must Impose a Consecutive Term Under Section 12022.53, Subdivisions (d) and (e)(1)
The jury found Cortez guilty of count 2 and found true that he had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and both defendants were principals in the offense and at least one principal personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivisions (d) and (e)(1). Section 12022.53, subdivision (d), provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, 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." Section 12022.53, subdivision (e) provides "(1) 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)."
When the elements of the section 12022.53 enhancement are pleaded and found true, as here, imposition of the additional term specified by section 12022.53 is mandatory. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214.) Although the original sentencing court recognized this sentencing imperative by imposing an additional consecutive 25-year-to-life sentence premised on the section 12022.53, subdivisions (d) and (e)(1) firearm enhancement (Cortez, supra, D049716, at p. 42), and the probation report prepared for the second sentencing court reiterated that an additional consecutive 25-year-to-life sentence for the section 12022.53, subdivisions (d) and (e)(1) firearm enhancement was required, the second sentencing court omitted any mention of this enhancement in its sentencing order.
The People contend that, on remand, the trial court must impose an additional consecutive 25-year-to-life sentence for the section 12022.53, subdivisions (d) and (e)(1) firearm enhancement. Cortez has submitted no opposition to this argument, and we agree the additional term is mandated. Accordingly, on remand, the trial court shall impose an additional 25-year-to-life sentence for the section 12022.53, subdivisions (d) and (e)(1) firearm enhancement consecutive to the term imposed for count 2.
DISPOSITION
The judgment is reversed as to the defendant's sentence, the sentence is vacated, and the matter is remanded for resentencing in accordance with the directions provided in this opinion and Cortez I. The judgment is otherwise affirmed.
WE CONCUR: NARES, Acting P. J.McINTYRE, J.