Opinion
B203788
8-4-2008
THE PEOPLE, Plaintiff and Respondent, v. LUIS AURELLO GARCIA, Defendant and Appellant.
Janyce Keiko Imata Blair, 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, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant, Luis Aurello Garcia, appeals from his convictions for one count of first degree murder (Pen. Code, § 187, subd. (a)) and one count of attempted murder (§§ 187, subd. (a), 664) and the jurors findings: the attempted murder was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)); the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)); a principal personally used a firearm in the commission of the crimes (§ 12022.53, subds. (b), (e)); a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) and (e)(1)); and a principal personally and intentionally discharged a firearm proximately cause death to Vincent Villa. (§ 12022.53, subd. (d).) Defendants sole contention on appeal is that the trial court improperly imposed criminal street gang enhancements pursuant to section 186.22, subdivision (b)(1) as to counts 1 and 2. The Attorney General argues that the trial court should have imposed and stayed a section 1202.45 parole revocation fine and two court security fees. We reverse the section 186.22, subdivision (b)(1)(C) enhancements and order the minor modifications sought by the Attorney General.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 4:15 p.m. on February 9, 2005, Vincent Villa and Tommie Iles were shot as they crossed the street at Palos Verdes and 11th Streets. Mr. Villa died as a result of multiple gunshot wounds. Mr. Iles suffered a superficial wound. Defendant was arrested approximately one month after the shooting. Defendant was an admitted member of the local gang. Mr. Illes was a member of a rival gang. A latent print lifted from the bathroom of a nearby boarding house where the assailants had run was matched to defendant. Latent prints lifted from a gun found in a bucket outside the boarding house matched those of the co-defendant Benito Cortes.
Defendant argues and the Attorney General concedes that the trial court improperly imposed two 10-year section 186.22, subdivision (b)(1)(C) gang enhancements. The parties agree the two 10-year terms cannot be imposed because the trial court also imposed firearm use enhancements pursuant to section 12022.53, subdivisions (d) and (e)(1) as to counts 1 and 2. In People v. Salas (2001) 89 Cal.App.4th 1275, 1278-1283, we held: "In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm used by the accused is not required under these specific circumstances. However, as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm. In the present case, the jury never found that defendant personally used a firearm." (Original italics; see also People v. Lopez (2005) 34 Cal.4th 1002, 1006-1011 [first degree murder committed for the benefit of a gang falls within the 15-year minimum parole eligibility term in § 186.22, subd. (b)(5) rather than being subject to the 10-year enhancement set forth in § 186.22, subd. (b)(1)(C)].) In this case, the 10-year section 186.22, subdivision (b)(1)(C) enhancements imposed as to counts 1 and 2 should be stricken because the jury did not find defendant personally used a firearm.
The Attorney General argues that the trial court should have imposed and stayed a $500 parole revocation restitution fine pursuant to section 1202.45. The trial court imposed a $500 section 1202.4, subdivision (b)(1) restitution fine. However, the trial court neglected to impose the mandated section 1202.45 parole revocation fine. Upon remittitur issuance, the judgment is to be modified to impose and stay the $500 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.)
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 1468.5, subdivision (a)(1) court security fee. However, the oral pronouncement of sentence did not include the imposition of a court security fee. Therefore, upon remittitur issuance, two section 1465.8, subdivision (a)(1) fees shall be imposed. 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.)
The judgment is modified to: reverse and strike the Penal Code section 186.22, subdivision (b)(1)(C) enhancements imposed as to counts 1 and 2; impose and stay a $500 Penal Code section 1202.45 parole revocation fine; and impose two $20 Penal Code section 1468.5, subdivision (a) court security fees. Upon remittitur issuance, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur:
ARMSTRONG, J.
MOSK, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.