Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA069222. David S. Milton, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Appellant Jarmon Sanford appeals from the judgment imposed after resentencing. In our unpublished opinion, case No. B210890, we remanded the matter to the trial court for resentencing in counts 1 and 5 and in the enhancements imposed in the subordinate counts. Appellant contends that the trial court erred in resentencing when it imposed the full 10-year terms in the subordinate counts for the gang enhancements pursuant to Penal Code section 186.22, subdivision (b)(1)(C). Respondent concedes this point.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s convictions arose from an incident in which he opened fire from a car with a semiautomatic firearm upon a group of persons on the sidewalk. The group was comprised of two young men and two children. One of the young men was shot in the leg. The jury found that the shooting was committed for the benefit of a criminal street gang.
The facts are taken from our unpublished opinion in case No. B210890, which is included in the clerk’s transcript.
The jury convicted appellant of two counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) (counts 1 & 5) and four counts of assault with a semiautomatic firearm (§ 245, subd. (b)) (counts 2, 3, 4, & 6). In counts 1 and 5, the jury found that appellant used and discharged a firearm and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d), & (e)(1)). In counts 1 and 2, the jury found that appellant inflicted great bodily injury (§ 12022.7, subd. (a)). With respect to all counts, the jury found that the crimes were committed to benefit a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to a total term of 89 years to life. In count 1, the trial court imposed 15 years to life for the attempted murder along with a gun-use enhancement of 25 years to life, for a total term of 40 years in that count. For the assault convictions in counts 3 and 4, the court imposed one-third the midterm of six years (two years) and a 10-year gang enhancement, for a total term of 12 years in each of those counts. In count 5, the trial court imposed 15 years to life for the attempted murder and a 10-year gang enhancement, for a total of 25 years to life in that count. The trial court stayed midterm sentences in counts 2 and 6 under section 654.
We affirmed appellant’s convictions but agreed with appellant and respondent that the trial court made several sentencing errors that required remand for resentencing. We directed the trial court to impose a determinate term in the two attempted murder counts (counts 1 & 5) in accordance with section 664, subdivision (a). This section provides for a sentence of five, seven, or nine years for attempted murder when, as in this case, there is no premeditation finding. We also directed the trial court to reduce the gang enhancements on the subordinate counts to one-third of the full term of 10 years in accordance with section 1170.1.
DISCUSSION
On remand, the trial court properly imposed determinate terms for the attempted murder counts. In count 1, the court sentenced appellant for the attempted murder to a total term of 40 years to life. After articulating mitigating circumstances, the trial court imposed the low term of five years. The trial court then imposed a consecutive firearm enhancement of 25 years to life pursuant to section 12022.53, subdivision (d) and a 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). The trial court imposed and stayed a term of three years pursuant to section 12022.7, subdivision (a) for the great bodily injury enhancement. The trial court stayed the 25-year firearm enhancement under section 12022.53, subdivision (c).
For the attempted murder in count 5, the trial court imposed a consecutive sentence of one-third the midterm of seven years (two years four months). The trial court then imposed the full 10-year gang enhancement instead of one-third of it. The trial court also imposed and stayed the firearm enhancement pursuant to section 12022.53, subdivision (d).
For the assaults in violation of section 245, subdivision (b) in counts 3 and 4, the trial court imposed consecutive sentences of one-third the midterm of six years (two years) in each count. The trial court then imposed the full 10-year gang enhancement instead of one-third of the enhancement in each of these counts.
The trial court imposed the midterm sentence of six years in counts 2 and 6 but stayed these sentences pursuant to section 654. Appellant’s total sentence after his resentencing amounted to 76 years four months.
Appellant correctly points out that the trial court should not have imposed the full 10-year terms in counts 3, 4, and 5 for the gang enhancements pursuant to section 186.22, subdivision (b)(1)(C). As appellant phrases it, he was sentenced to a collective term of 30 years on the three subordinate enhancements instead of 10 years, which is the product of three times one-third of the 10-year enhancement. Appellant then claims that the sentence should be reduced to 46 years four months, but this calculation is incorrect—the total sentence should be 56 years four months to life after the reduction in the enhancements. We therefore remand for resentencing to correct the sentences on the enhancements.
We observe that there are minor sentencing errors that do not affect the length of appellant’s sentence. As we pointed out in our prior opinion, in People v. Gonzalez (2008) 43 Cal.4th 1118, our Supreme Court held that “section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements... that were found true for the same crime must be imposed and then stayed. (Id. at p. 1130.) Enhancements were found true under section 12022.53, subdivisions (b), (c), and (d) for counts 1 and 5. Therefore, in count 1, the enhancements under both subdivisions (b) and (c) of section 12022.53 must be stayed. In count 5, where the trial court stayed the sentence for the enhancement under section 12022.53, subdivision (d), the enhancements under sections 12022.53, subdivisions (b) and (c) must be stayed as well. Also, in count 1 the trial court imposed and stayed the enhancement for great bodily injury that was found true in that count pursuant to section 12022.7, subdivision (a). However, according to section 12022.53, subdivision (f), “[a]n enhancement for great bodily injury as defined in Section 12022.7, ... shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” In count 2, the trial court stayed the midterm sentence of six years pursuant to section 654, but did not impose, stay, or strike the great bodily injury enhancement of three years (§ 12022.7, subd. (a)) or the gang enhancement, both of which were found true in that count. In count six, the trial court stayed the midterm sentence of six years pursuant to section 654 but did not impose and stay or strike the gang enhancement for the serious felony in that count. (§§ 1192.7, subd. (c)(23), (31), 186.22, subd. (b)(1)(B).)
In People v. Sinclair (2008) 166 Cal.App.4th 848, the court pointed out that “[s]ubdivision (g) of section 186.22 accords the trial court discretion to strike a gang enhancement ‘where the interests of justice would best be served....’” (Id. at p. 855) Sinclair concluded that the trial court was obliged to impose and stay a gang enhancement unless it exercised its discretion to strike the enhancement under subdivision (g) of section 186.22. (Ibid.)
DISPOSITION
The judgments of conviction are affirmed, the sentences are reversed, and the matter is remanded for resentencing in accordance with this opinion. The superior court is directed to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: DOI TODD J., CHAVEZ J.