Opinion
E066859
11-03-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANK RUDY RIVERA, JR., Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Heidi Salerno, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF145423) OPINION APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed as modified. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
On March 25, 2011, a jury found defendant and appellant Frank Rudy Rivera, Jr. (defendant) and his codefendant Robert Angel Corrales guilty of (1) the lesser charge of attempted murder of Omar Briceno Santana (the victim) (count 1; Pen. Code, §§ 664, 187, subd. (a)); (2) assault with a deadly weapon (a knife) of the victim (count 2; Pen. Code, § 245, subd. (a)(1)); and (3) participation in a criminal street gang (count 4; Pen. Code, § 186.22, subd. (a)). As to count 2, the jury found true the great bodily injury enhancement and the gang enhancement.
On May 13, 2011, the trial court sentenced defendant to 12 years eight months. The sentence included nine years for count 1, which the court stayed under Penal Code section 654; four years for count 2, plus three years for the great bodily injury enhancement and five years for the gang enhancement; and eight months for count 4.
On April 29, 2016, the Division of Adult Institutions sent a letter to the court pointing out that the Penal Code section 186.22, subdivision (b)(1) gang enhancement carries a 10-year sentence, not a five-year sentence. Therefore, on September 9, 2016, the trial court resentenced defendant to 10 years for the gang enhancement as to count 2 under section Penal Code 186.22, subdivision (b)(1), but did not disturb the remainder of the sentence. The new sentence totaled 17 years eight months.
On September 13, 2016, defendant filed a timely notice of appeal.
DISCUSSION
A. THE TRIAL COURT ERRED IN FAILING TO STRIKE THE THREE-YEAR GREAT BODILY INJURY ENHANCEMENT
Defendant contends that the trial court erred in sentencing him on both the great bodily injury enhancement and the gang enhancement for the same incident with the same victim. The People agree that, "[b]ecause the court increased the gang enhancement sentence based on the infliction of great bodily injury, the court should have struck the three-year great bodily injury enhancement sentence."
Penal Code section 1170.1, subdivision (g), provides:
"When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
Penal Code section 12022.7 sets forth various sentence enhancements for the infliction of great bodily injury while committing or attempting a felony. Penal Code section 12022.7, subdivision (a), provides:
"Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
Penal Code section 186.22, subdivision (b)(1), states in pertinent part:
"[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
"(C) If the felony is a violent felony, as defined in subdivision (c) of [Penal Code s]ection 667.5, the person shall be punished by an additional term of 10 years."
Penal Code section 667.5, subdivision (c), lists a number of offenses that qualify as a "violent felony," including "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in [Penal Code s]ection 12022.7." (Pen. Code, § 667.5, subd. (c)(8).)
Therefore, defendant's infliction of great bodily injury during the assault resulted in a true finding under Penal Code section 12022.7, subdivision (a), and turned the underlying offense of assault into a "violent felony," as defined under Penal Code section 667.5, subdivision (c), which then qualified defendant for the 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(2).
In People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1331-1332, the court found that Penal Code section 1170.1, subdivision (g), prohibited imposition of more than one enhancement for the infliction of great bodily injury. In that case, the court reasoned that the "same infliction of great bodily injury" that subjected defendant to a Penal Code section 12022.7, subdivision (a) enhancement also "turned [the] underlying assault offense into a 'violent felony' under [Penal Code s]ection 667.5, which subjected him to a 10-year enhancement under [Penal Code s]ection 186.22, subdivision (b)(1)(C)." (Id. at p. 1332.)
In this case, the conviction for attempted murder (count 1) would have qualified as a "violent felony" on its own, which would have required the 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C). However, because the jury sent back blank verdict forms on those enhancements as to count 1, the enhancements did not attach to count 1. The enhancements, therefore, only apply to count 2. Under People v. Gonzales, supra, 178 Cal.App.4th 1325, the trial court was required to stay the three-year great bodily injury enhancement sentence. Therefore, we will modify the sentence, striking the three-year great bodily injury enhancement. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Alford (2010) 180 Cal.App.4th 1463, 1473.)
B. THE SENTENCE ON COUNT 4 IS STAYED
For the first time on appeal, defendant contends that the court erred in failing to stay the sentence on count 4 (criminal street gang) under Penal Code section 654. Here, the court imposed an eight-month sentence on count 4 in 2011, instead of staying the sentence. The People do "not object to the court staying the sentence on count 4."
Penal Code section 654, subdivision (a), provides:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
In People v. Mesa (2012) 54 Cal.4th 191, our Supreme Court found that Penal Code section 654 precludes punishing a defendant for active participation in a criminal street gang under Penal Code section 186.22, subdivision (a), where the only evidence of such prohibited participation was the commission of a charged offense for which the defendant was also convicted and sentenced. (Mesa, at pp. 197-198, 200.)
In this case, the People charged defendant with active participation in a criminal street gang "connected in its commission with the charges set forth in counts 1 through 3." Because defendant's conviction for active participation in a criminal street gang was based on the commission of the other offense for which he was convicted and sentenced, the court should have stayed the sentence on count 4 under Penal Code section 654. Therefore, we will stay the sentence on count 4. (Neal v. State of California, supra, 55 Cal.2d at p. 19; People v. Alford, supra, 180 Cal.App.4th at p. 1473.)
DISPOSITION
The judgment is modified to (1) strike the three-year great bodily injury enhancement and (2) stay the sentence on count 4. The superior court clerk is hereby directed to amend the abstract of judgment to reflect this modification, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.