Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA073420, Charles D. Sheldon, Judge. Retired judge of the L.A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
Patricia A. Scott, 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, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Jose Luis Rodriguez, appeals from his convictions for: willful, deliberate, and premeditated murder (Pen. Code, § 187, subd. (a)); attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664); assault with a firearm (§ 245, subd. (a)(2)); and firearm possession by a felon. (§ 12021, subd. (a)(1).) The jurors also found: defendant discharged a firearm in the commission of the murder and attempted murder (§§12022.53, subds. (b), (c), (d)); defendant personally used a firearm in the commission of the assault with a firearm (§ 12022.5); and counts 1 through 3 were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Defendant argues the trial court improperly imposed a 10-year section 186.22, subdivision (b)(1)(C) enhancement as to count 1 and the abstract of judgment should be corrected to more accurately reflect the sentence imposed as to count 4. The Attorney General argues section 1465.8, subdivision (a)(1) court security fees should be imposed as to each count and a sentence should have been orally imposed as to count 4 prior to staying it pursuant to section 654, subdivision (a). We affirm in part with modifications, reverse in part, and remand to allow the trial court to impose a sentence as to count 4.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
On February 6, 2007, Michael Hayes lived in an apartment on Third Street in Long Beach with several other persons. At approximately 5 p.m., only Mr. Hayes’s brother, Richard Martinez, and Silvio Fabio Cabrera were present in the apartment. Defendant knocked on Mr. Hayes’s apartment door. When Mr. Hayes answered, defendant asked if Alex Gomez was present. Defendant did not use Mr. Gomez’s name when making the inquiry. Rather, defendant used Mr. Gomez’s gang moniker. Mr. Gomez was a member of a different gang who had been arrested conducting a drug transaction. Mr. Hayes had seen defendant in the neighborhood prior to that evening. Mr. Gomez was a friend of one of Mr. Hayes’ roommates, Mike Klege. Mr. Hayes said, “[Mr. Gomez] is not here. He doesn’t live here.” Defendant said: “Well, are you sure because this is the last location that he gave me where he lived at. And this is the last place I seen him.” Mr. Hayes repeated to defendant that Mr. Gomez did not live there. Defendant said, “When you see him, can you let him know that [I] from [the local gang] was looking for him.” Defendant used his gang alias when referring to himself. Defendant claimed he was owed thousands of dollars for methamphetamine. And it was Mr. Gomez who owed defendant the money.
Mr. Cabrera, who was a visitor of Mr. Hayes’, told defendant, “He’s not here, homey, you know.” Defendant responded, “Well, who the fuck is that?” Defendant said, “Well, who the are you.” Mr. Cabrera walked to the door stating: “Don’t worry about who I am, this is my stepson’s house.... And he told you he wasn’t here.” Mr. Cabrera and defendant looked at one another. When Mr. Cabrera said, “What’s up?” They appeared to know one another. Defendant said, “Why don’t you tell me what’s up, you know.” Mr. Hayes told defendant to come back at nighttime to find Mr. Gomez. After defendant left, Mr. Cabrera stepped outside to smoke. Mr. Hayes described what occurred when Mr. Cabrera returned to that apartment: “When [Mr. Cabrera] came back into the house... he had told me that they had got into it outside. He made [defendant] leave the building.”
Defendant returned to Mr. Hayes’s house a few hours later. Mr. Martinez saw defendant through the door. Mr. Martinez sat down on a computer chair. When Mr. Hayes opened the door, defendant again asked for Mr. Gomez. Mr. Hayes said Mr. Gomez was not there. Defendant said, “Well, you know, don’t lie to me, homey, because I’ll come in and search.” Mr. Hayes responded: “I’m not going to lie to you. If [Mr. Gomez] was here, I’d tell you he was here. You’re still more than welcome to come inside and check and see if [Mr. Gomez is] here.” As defendant spoke, he kept his hand in his jacket. Mr. Hayes said, “Yeah, I’m positive [Mr. Gomez is not here.]” Defendant responded, “Well, where’s that Black mother fucker that was talking shit earlier?” Mr. Hayes believed defendant was referring to Mr. Cabrera. Mr. Cabrera said, “Well, who the fuck is that.” Defendant identified himself from his gang moniker and said, “Tell him I’m from [the local gang].”
As Mr. Cabrera got up, defendant pushed the door open. Mr. Hayes was knocked backward into the kitchen. Defendant pointed a small black handgun at Mr. Hayes’s face. Defendant said: “Back the fuck up. Back the fuck up.” Defendant appeared to see Mr. Cabrera sitting on the couch and Mr. Martinez on the computer chair. Defendant then lowered his gun. A shot was fired. Mr. Hayes believed the shot may have been accidental. Defendant then pointed the gun alternatively at Mr. Cabrera and Mr. Martinez. As Mr. Hayes moved toward defendant two other men came in the door. The two men began fighting with Mr. Hayes. Mr. Hayes heard another gunshot. Mr. Martinez was on the floor. Mr. Cabrera was not moving. Mr. Hayes then heard additional gunshots. Mr. Hayes managed to escape through the door. Mr. Hayes ran to his mother’s house. Mr. Hayes spoke to the police on the telephone. Mr. Hayes ran back to his apartment. Mr. Hayes then encountered an acquaintance. The acquaintance said he saw three Mexican men running down the steps and out the back door.
After Mr. Cabrera was shot twice, he passed out. Shortly thereafter Mr. Cabrera awoke. Defendant was standing over Mr. Cabrera. Defendant then shot Mr. Cabrera three additional times. Mr. Cabrera saw two teenage boys in the apartment with defendant. Mr. Cabrera was in the hospital for nine days after having been shot five times. He continued to experience pain at the time of trial. Mr. Cabrera later identified defendant from a photographic lineup. Mr. Martinez died of a gunshot wound to the back which perforated his aorta and heart.
Long Beach Police Detective Chris Zamora was assigned to the gang enforcement section for six years. Detective Zamora was familiar with the local Hispanic street gang. The local gang was heavily involved in the sales of narcotics in the community, particularly methamphetamines. The local gang sells narcotics on the street and to other gangs within the surrounding area. The gang has a specific territory, common signs, and representative tattoos. In addition to the sales of narcotics, the local gang was involved in: robberies; car thefts; burglaries; home invasions; and, sales and possession of illegal weapons.
Detective Zamora was familiar with the criminal convictions of local gang members including Genaro Zaragoza who was convicted of assault with a firearm on a person. Additionally Angel Ramirez had been convicted of two counts of attempted murder. Defendant was a member of the local gang. Detective Zamora also served a search warrant on defendant’s house in 2006. At that time, several items linking defendant to the local gang were recovered. Detective Zamora was familiar with Mr. Gomez, who was a rival gang member. Mr. Gomez was arrested for selling drugs in Long Beach. When a hypothetical scenario similar to what occurred in this case was posed to Detective Zamora, he believed the murder and assault were committed for the benefit of the local gang.
Officer Gregory Roberts searched defendant’s apartment. A binder recovered during that search included notes referencing defendant’s gang moniker. There was also a notation relating to the transfer of money from defendant to another local gang member.
III. DISCUSSION
A. Gang Enhancement
Defendant argues and the Attorney General concedes that the trial court improperly imposed a 10-year section 186.22, subdivision (b)(1)(C) gang enhancement as to count 1. The parties argue no gang enhancement would be imposed as to count 1 because the trial court also imposed a firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1) as to count 1. In People v. Lopez (2005) 34 Cal.4th 1002, 1006-1011, our California Supreme Court held that first degree murder committed for the benefit of a gang falls within the 15-year minimum parole eligibility term in section 186.22, subdivision (b)(5) rather than being subject to the 10-year enhancement set forth in section 186.22, subdivision (b)(1)(C).) (See also People v. Fiu (2008) 165 Cal.App.4th 360, 390.) In this case, the 10-year section 186.22, subdivision (b)(1)(C) enhancements imposed as to count 1 is stricken. A 15-year minimum parole period is imposed as to count 1 pursuant to section 186.22, subdivision (b)(5).
B. Correction of the Abstract of Judgment
Defendant argues and the Attorney General concedes that the abstract of judgment inaccurately reflects the imposition of a four-year section 12022.5, subdivision (a) firearm enhancement as to count 3. The trial court imposed the low term of three years as to that enhancement. The California Supreme Court has held: “[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also §§ 1213, 1213.5, People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Walz (2008) 160 Cal.App.4th 1364, 1367.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, “[O]n its own motion, the reviewing court may order the correction... of any part of the record.” (See also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.)” The abstract of judgment is corrected to reflect the imposition of a three-year section 12022.5, subdivision (a) enhancement as to count 3.
C. Section 1202.45 Parole Revocation Fine
The Attorney General argues that the trial court should have imposed and stayed a $200 parole revocation restitution fine pursuant to section 1202.45. The trial court imposed a $200 section 1202.4, subdivision (b)(1) restitution fine. The abstract of judgment reflects the imposition of a section 1202.45 fine as well. However, the trial court’s oral pronouncement of sentence neglected to impose the mandated section 1202.45 parole revocation restitution fine. Hence, the judgment is modified to impose and stay the $200 section 1202.45 fine. (People v. Smith (2001) 24 Cal.4th 849, 851-854; People v. Rodriguez (2000) 80 Cal.App.4th 372, 375-376; People v. Hong (1998) 64 Cal.App.4th 1071, 1084.)
D. Court Security Fee
The Attorney General also argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The abstract of judgment reflects the imposition of one section 1465.8, subdivision (a)(1) fee. But the oral pronouncement of judgment indicates a “$50 security fine” was imposed. Therefore, four section 1465.8, subdivision (a)(1) court security fees must be imposed.
E. Count 4 Sentence
Following our request for further briefing, the Attorney General argues that the trial court should have imposed a sentence as to count 4 before staying it pursuant to section 654, subdivision (a). We agree. The trial court had a duty to impose a specific sentence as to count 4 prior to staying the sentence. The California Supreme Court has held that where counts are subject to the provisions of section 654, subdivision (a), “[T]he proper procedure is to impose sentence for both of the counts, and stay sentence for one of them.” (People v. Norrell (1996) 13 Cal.4th 1, 13-14 (conc. & dis. opn. of Arabian, J.); People v. Pearson (1986) 42 Cal.3d 351, 359-361; People v. Watkins (1994) 26 Cal.App.4th 19, 25, fn 1; People v. Jenkins (1965) 231 Cal.App.2d 928, 934-935.) The matter is remanded to allow the trial court to set a specific sentence on count 4 and then stay that sentence. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The 10-year section 186.22, subdivision (b)(1)(C) enhancement as to count 1 is stricken. A 15-year minimum parole period is imposed as to count 1. The abstract of judgment is to be modified to reflect the imposition of: the 15-year minimum term as to count 1; a 3-year section 12022.5, subdivision (a) enhancement as to count 3; 4 $20 section 1465.8, subdivision (a)(1) court security fees; and a $200 section 1202.45 parole revocation restitution fine, which is stayed pending a parole revocation. Upon remittitur issuance, the trial court to impose a specific term as to count 4 before staying it pursuant to section 654, subdivision (a). The superior court clerk shall then forward an amended abstract of judgment to the Department of Corrections and Rehabilitation reflecting the modifications as set forth above. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.