Opinion
D057386 Consolidated with D057875
08-12-2011
THE PEOPLE, Plaintiff and Respondent, v. ANDREW VALDIVIA et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FVA801582)
APPEAL from a judgment of the Superior Court of San Bernardino, Ingrid A. Uhler, Judge. Affirmed as modified, with directions.
Following a joint jury trial, appellants Andrew Valdivia and Angel Valencia were convicted of two counts of premeditated attempted murder, and two counts of assault with a firearm. The jury also found true allegations of personally discharging a firearm causing great bodily injury and that the crimes were committed for the benefit of a criminal street gang. In addition, the jury found that Valencia had suffered a serious/violent felony prior conviction within the meaning of Penal Code section 667, subdivisions (b) through (i).
All further statutory references are to the Penal Code unless otherwise specified.
Valdivia was sentenced to a total term of 85 years to life. Valencia was sentenced to a total term of 115 years to life.
In this appeal, the appellants do not challenge either the sufficiency or the admissibility of the evidence to support their convictions and the true findings on the various enhancements. The appeal is focused solely on alleged sentencing errors. The appellants contend the court erred in imposing a 10-year term for the gang enhancement under section 186.22, subdivision (b) because the crimes of attempted murder carry a life term and thus the 15-year minimum parole eligibility requirement imposed by the court for those counts precludes additional application of the 10-year term. The appellants also contend the abstracts of judgment are incorrect in two particulars. First they fail to reflect that the sentences for the assault with firearms counts were stayed pursuant to section 654. Second, the abstracts of judgment fail to accurately reflect the sentences for the attempted murder counts are life terms with minimum parole eligibility terms. The People correctly agree with appellant's contentions. Accordingly, we will order the trial court to delete the 10-year terms imposed on counts 1 and 2 for the gang enhancement. We will also order the court to amend the abstracts of judgment to reflect the sentences on counts 3 and 4 were stayed pursuant to section 654 and to reflect the sentences for counts 1 and 2 as life terms with the minimum parole eligibility terms prescribed for each appellant.
DISCUSSION
A. 10-Year Gang Enhancement
At sentencing the trial court imposed two gang enhancements. It ordered that the minimum eligibility for parole for the life term offenses be set at 15 years pursuant to section 186.22, subdivision (b)(5). In addition, the court imposed 10-year enhancements as to each defendant pursuant to section 186.22, subdivision (b)(1)(C). The appellants contend, and the People agree, that the court could not legally impose both enhancements.
In People v. Lopez (2005) 34 Cal.4th 1002, 1004, the court explained that where the underlying offense is punishable by life imprisonment, the correct gang enhancement to be applied is subdivision (b)(5) of section 186.22. The court concluded the Legislature intended to exempt such offenses from the additional application of the 10-year term called for in subdivision (b)(1)(C).
Under the clear authority of the Supreme Court it is apparent that the trial court erred in imposing the additional 10-year gang enhancement as to each defendant. We will order the enhancements stricken and the abstracts of judgment amended accordingly.
B. Section 654
Both parties agree that the trial court stayed the sentences on counts 3 and 4 pursuant to section 654. The abstracts of judgment do not reflect the trial court's action and will have to be amended.
C. The Life Terms
Finally, the appellants note the abstracts of judgment for counts 1 and 2 do not accurately reflect the terms for the offenses. The abstracts should reflect that the terms for the two counts are "life" terms with specific minimum parole eligibility terms.
DISPOSITION
The trial court is ordered to strike the 10-year terms imposed as to both appellants pursuant to section 186.22, subdivision (b)(1)(C). The trial court is ordered to amend the abstract of judgment as to each appellant to strike the 10-year term, reflect that the sentences on counts 3 and 4 are stayed pursuant to section 654, and to reflect that the sentences for counts 1 and 2 are life terms with specified minimum parole eligibility. The court is ordered to forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgments are affirmed.
HUFFMAN, Acting P. J. WE CONCUR:
O'ROURKE, J.
IRION, J.