Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Anita H. Dymant, Judge. Los Angeles County Super. Ct. No. BA293955
Judith Kahn, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Pedro Hernandez appeals from the judgment entered following his conviction by jury of first degree murder (Pen. Code, § 187) with findings that he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)), personally and intentionally discharged a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)), and committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)), with a court finding that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)). The court sentenced appellant to prison for a total unstayed term of 85 years to life. We will modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
This case involves sentencing issues for which a detailed recitation of the facts is unnecessary. Suffice it to say that, viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on November 21, 2005, appellant committed the above offense in Los Angeles by repeatedly shooting Chris Felix at close range, killing him. Appellant, a member of a criminal street gang, committed the present offense for the benefit of the gang, and had suffered a prior conviction for second degree robbery.
CONTENTIONS
Appellant claims the 10-year Penal Code section 12022.53, subdivision (d) enhancement must be stricken. Respondent claims the enhancements under Penal Code section 12022.53, subdivisions (b) and (c) must be imposed and stayed.
DISCUSSION
The 10-Year Enhancement Must Be Stricken, a 15-Year Minimum Parole Eligibility Term Must Be Imposed, and the Enhancements Under Penal Code Section 12022.53, Subdivisions (b) and (c), Must Be Imposed and Then Stayed.
1. Pertinent Facts.
On September 18, 2007, the court sentenced appellant to prison for 50 years to life for murder (25 years to life, doubled pursuant to the “Three Strikes” law). The court then imposed a consecutive term of 25 years to life in prison pursuant to Penal Code section 12022.53, subdivision (d).
According to the reporter’s transcript, the court then stated, “The court is staying the sentence on the enhancement or the special allegation pursuant to Penal Code section 12022.53(e) [sic and (c) pursuant to Penal Code section 654 since they arise from the same act.” The September 18, 2007 minute order reflects “Court stays sentence pursuant to 654 of the Penal Code pursuant to Penal Code sections 12022.53(c) and 12022.53(b).” (Sic.) The abstract of judgment reflects the court “stayed” “time” on the Penal Code section 12022.53, subdivision (b) and (c) enhancements. The abstract does not reflect whether that stay was pursuant to Penal Code section 654 or 12022.53, nor is there a specifically designated place on the abstract form where such information is to be provided.
As discussed below, it appears the court meant here Penal Code section 12022.53, subdivision (b), not subdivision (e).
The abstract of judgment reflects it is a “Form Adopted for Mandatory Use [¶] Judicial Council of California.”
The court also imposed a consecutive 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement. The abstract of judgment reflects the imposition of this enhancement and does not reflect the imposition of a 15-year minimum parole eligibility term (MPET). The trial court stated that appellant’s total sentence was 85 years to life.
2. Analysis.
a. The Trial Court Erred by Imposing the 10-Year Enhancement and Failing to Impose a 15-Year Minimum Parole Eligibility Term.
As respondent apparently concedes, the trial court erred by imposing the 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement. Since appellant committed first degree murder (punishable by “imprisonment in the state prison for a term of 25 years to life” (Pen. Code, § 190, subd. (a)), he committed “a felony punishable by imprisonment in the state prison for life” within the meaning of Penal Code section 186.22, subdivision (b)(5). As a result, the trial court should have imposed a 15-year MPET pursuant to Penal Code section 186.22, subdivision (b)(5), not a 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement. (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.) We will modify the judgment accordingly and to reflect that appellant’s total unstayed prison sentence is 75 years to life.
b. The Court Erred by Staying Two of the Enhancements Pursuant to Penal Code Section 654.
Respondent claims the enhancements under Penal Code section 12022.53, subdivisions (b) and (c) must be imposed and stayed. We agree that, pursuant to Penal Code section 12022.53, subdivision (f), the two enhancements must be imposed then stayed.
The jury found true the two enhancement allegations pursuant to Penal Code section 12022.53, subdivisions (b) and (c), respectively. Moreover, fairly read, and as respondent observes without dispute, the record indicates the trial court, pursuant to Penal Code section 654, stayed sentencing with respect to those true findings.
Although the reporter’s transcript indicates the trial court referred to Penal Code section 12022.53, subdivision (e) (see fn. 1), that subdivision has nothing to do with the staying of enhancements. There is no dispute the trial court was referring to Penal Code section 12022.53, subdivision (b), not subdivision (e).
When Penal Code section 654 applies to offenses, the appropriate disposition is to impose sentence and stay execution thereof pending completion of the sentence on the remaining count(s). (People v. Pearson (1986) 42 Cal.3d 351, 360.) We suspect the trial court’s oral reference during sentencing to “staying . . . pursuant to Penal Code section 654,” in the context of the rest of the court’s sentencing comments, was the trial court’s shorthand way of saying that, pursuant to Penal Code section 654, the court was imposing the Penal Code section 12022.53, subdivision (b) enhancement and the subdivision (c) enhancement, but staying execution of both pending completion of appellant’s remaining sentence.
The statute requiring the trial court to impose the above two enhancements while allowing the court to stay execution thereof was Penal Code section 12022.53, subdivision (f), not Penal Code section 654; therefore, to the extent the trial court relied on Penal Code section 654, the court erred. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, fn. 5, 1127-1131.)
However, to the extent the trial court, in shorthand fashion, imposed sentence on the two enhancements, then stayed execution thereof, the trial court did not err. (Cf. People v. Gonzalez, supra, 43 Cal.4th at pp. 1123, fn. 5, 1130.) We will modify the judgment to clarify that, pursuant to Penal Code section 12022.53, subdivision (f), the two enhancements are imposed with execution thereof stayed. We see no need to direct the trial court to amend the abstract of judgment as to those two enhancements, since the abstract correctly reflects, in the only way called for by the abstract form, and without an erroneous reference to Penal Code section 654, that time was stayed on those two enhancements.
DISPOSITION
The judgment is modified by striking the 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement, by imposing, pursuant to Penal Code section 186.22, subdivision (b)(5), a 15-year MPET, and by imposing, pursuant to Penal Code section 12022.53, subdivision (f), each of the Penal Code section 12022.53, subdivision (b) and (c) enhancements and staying execution of sentence on those two enhancements pending completion of appellant’s remaining sentence, with the result that appellant’s total unstayed prison sentence is 75 years to life. As so modified, the judgment is affirmed. The trial court is ordered to forward to the Department of Corrections an amended abstract of judgment reflecting the striking of the Penal Code section 186.22, subdivision (b)(1)(C) enhancement, the imposition of the Penal Code section 186.22, subdivision (b)(5) MPET, and appellant’s total unstayed prison sentence.
We concur: CROSKEY, Acting P. J., ALDRICH, J.