Opinion
G044846 Super. Ct. No. 06NF4409
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEDESMA, JR., Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Francisco P. Briseno, Judge. Affirmed in part, reversed in part, and remanded.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Before Rylaarsdam, Acting P.J., Aronson, J., and Ikola, J.
1 All further statutory references are to the Penal Code.
We previously affirmed David Ledesma, Jr.'s conviction of attempted murder with gang and gun use enhancements, but remanded for resentencing. Ledesma now appeals from his new sentence. We again remand the case for resentencing.
I
FACTS
Ledesma was convicted of the attempted murder of Jesus Ramirez (Pen. Code, § 187, subd. (a), § 664, subd. (a), count and street terrorism (§ 186.22, subd. (a), count 2). As to count 1, the jury found it true that defendant committed the attempted murder for the benefit of a street gang (§ 186.22, subd. (b)(1)) and that he personally discharged a firearm causing great bodily injury (§ 12022 .53, subd. (d)).
At the original sentencing, Ledesma received a term of 40 years to life in state prison, comprised of a sentence of 15 years to life as to count 1, plus 25 years for the personal use of a firearm as to that count. The trial court struck the gang use enhancement as to count 1, and imposed a concurrent two-year sentence for the conviction in count 2 of active gang participation. Upon defendant's appeal from that sentence, we affirmed his conviction, but remanded for resentencing on count 1 and ordered the trial court to stay sentence on count 2 pursuant to section 654. (People v. Ledesma (Oct. 1, 2010, G042332) (nonpub. opn.).)
Upon remand, the trial court again sentenced defendant to 40 years to life, which was comprised of a sentence of 15 years to life as to count 1, and 25 years for the firearm enhancement on that count. Over the People's objection, the court struck the gang allegation attached to count 1. The court stayed the sentence as to count 2, as we ordered. Ledesma appealed, arguing the sentence on count 1 was unauthorized.
II
DISCUSSION
The Attorney General concedes, and we agree, that the sentence for count one was a life term, rather than the term of 15 years to life imposed by the trial court. The error warrants another remand and resentencing.
The punishment for premeditated attempted murder under section 664, subdivision (a) is "life with the possibility of parole," with a minimum term before parole eligibility of seven years. (See § 3046, subds. (a)(1) & (a)(2); People v. Jefferson (1999) 21 Cal.4th 86, 95.) Based on the jury's finding that Ledesma committed the attempted murder for the benefit of his street gang, the trial court imposed the enhanced term of 15 years to life on the attempted murder count pursuant to section 186.22, subdivisions (b)(1) and (5). After imposing that enhanced term, however, the court dismissed the gang enhancement, rendering the sentence on count 1 improper. As already stated, without the gang enhancement, the sentence on count 1 was life with the possibility of parole, not 15 years to life. (§ 664, subd. (a).) Consequently, the court's decision to strike the gang enhancement derailed the court's clear intent to sentence Ledesma to a total term of 40 years to life.
The proper remedy is to remand for resentencing so the trial court can reconsider its sentencing choices. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1209.) Upon remand, if the court desires to sentence Ledesma to a 40-year prison term, the court can repeat the sentencing choices made at the last sentencing hearing with the exception of striking the gang enhancement. Of course, upon remand the court also has discretion to impose a lesser sentence.
Ledesma asks us to order the trial court to recalculate custody credits upon remand to include the actual custodial time spent as of the date of resentencing. We trust the trial court will comply with its obligations upon remand. (People v. Buckhalter (2001) 26 Cal.4th 20, 41.)
III
DISPOSITION
Ledesma's conviction remains affirmed. The sentence is vacated and the matter is remanded for resentencing.