Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD187321 David M. Gill, Judge.
AARON, J.
A jury convicted Deron Ford of first degree murder (Pen. Code, § 187, subd. (a)) and found that he personally used a firearm, discharged a firearm and caused death with a firearm (§ 12022.53, subds. (b)-(d)). The court found that Ford committed the offense for the benefit of a gang. (§ 186.22, subd. (b)(1). The court sentenced Ford to prison for 60 years to life: 25 years to life for murder, plus 25 years to life for the enhancement under section 12022.53, subdivision (d), plus 10 years consecutive for the gang enhancement. The court stayed the enhancements under section 12022.53, subdivisions (b) and (c), pursuant to section 654. The court also imposed direct victim restitution under section 1202.4, subdivision (f), joint and several with Ford's codefendants.
Statutory references are to the Penal Code.
Ford appeals, contending: (1) the 10-year gang enhancement should be reversed and a 15-year minimum parole eligibility term imposed in its place; (2) the abstract of judgment should be amended to reflect joint and several liability; and (3) the court should have either stricken or not imposed the enhancements under section 12022.53, subdivisions (b) and (c), rather than staying them. We affirm the judgment as modified.
BACKGROUND
Ford is a documented and admitted member of the "Skyline Piru" gang. The Skyline Piru gang has a rivalry with the Lincoln Park gang. Fifteen-year-old Michael B. lived in Lincoln Park gang territory, but was not a gang member. On November 26, 2004, Michael went to see his girlfriend who lived in Skyline gang territory. While walking from a liquor store with a group, six boys ran up to Michael, shouted derogatory remarks about Lincoln Park at him, and hit him. Another boy then shot and killed Michael and ran away.
Ford initially denied involvement in the incident, but later admitted that he had shot Michael. Ford claimed that the shooting was an accident, and said that he intended to shoot a "leprechaun," a derogatory reference to a Lincoln Park gang member.
DISCUSSION
Gang Enhancement
As part of Ford's sentence, the court imposed a 10-year consecutive gang enhancement under section 186.22, subdivision (b)(1). This was error, because Ford's murder conviction "is a violent felony that is punishable by imprisonment in the state prison for life and therefore is not subject to a 10-year enhancement under section 186.22(b)(1)(C)." (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) The People concede that the court erred, and do not oppose modification of the sentence. We agree that modification is appropriate. The sentence is therefore modified as follows: the 10-year gang enhancement is vacated and a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5) is imposed instead. (Id. at pp. 1004, 1011.) The trial court is directed to correct the sentence in a new abstract of judgment.
Joint and Several Liability for Victim Restitution
At sentencing, the court imposed direct victim restitution fines under section 1202.4. The court stated that liability for the restitution was to be "joint and several along with his [codefendants], Christina Alexander, Randy Howard, Michael Hune, Terri Adkins and Ray S." However, the abstract of judgment does not conform to the court's oral pronouncement. The abstract makes no reference to joint and several liability, but rather, states that the fines are imposed solely on Ford. Ford also contends that in its oral pronouncement, the court mistakenly omitted Lawrence Bates and instead referred to Ray S., who was tried in the juvenile court. Ford therefore requests that the abstract of judgment be amended to reflect that his liability for the direct victim restitution is joint and several with codefendants Christina Alexander, Lawrence Bates, Randy Howard, Michael Hune and Terri Adkins. The People do not oppose this modification, and we agree that the modification is appropriate. The judgment is therefore modified, and the trial court is directed to correct the clerical error in a new abstract of judgment. (In re Candelario (1970) 3 Cal.3d 702, 705.)
Enhancements for Personal Use and Discharge of a Firearm
The jury found that Ford personally used a firearm and that he personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). The court imposed and stayed the sentences on these enhancements. Ford contends that the court should have stricken the enhancements or not imposed sentence on the enhancements at all, rather than imposing and staying the sentences.
Ford cites no authority directly supporting his contention, and acknowledges that People v. Bracamonte (2003) 106 Cal.App.4th 704, 713-714 and People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061, support staying the enhancements. Ford also notes that the Supreme Court has granted review of this issue. (People v. Gonzalez (2006) 146 Cal.App.4th 327, review granted March 14, 2007, S149898.) In the absence of Supreme Court authority on the issue, we follow Bracamonte and Carrasco, and conclude that the court properly imposed and stayed the sentences for the 12022.53, subdivisions (b) and (c) enhancements. (§ 12022.53, subd. (h).)
DISPOSITION
The sentence on the 10-year gang enhancement is vacated and a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5) is imposed instead. Direct victim restitution is modified to be joint and several with codefendants Christina Alexander, Lawrence Bates, Randy Howard, Michael Hune, and Terri Adkins. The court is directed to prepare a corrected abstract of judgment reflecting the striking of the gang enhancement, imposition of the 15-year minimum parole eligibility term, and joint and several liability for direct victim restitution, and to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.