People v. Paniagua CA2/7 ( 2022 )

Filed 1/12/22 P. v. Paniagua CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B313479
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA081995)
v.
ARIEL BAKER PANIAGUA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Thomas S. Rubinson, Judge. Affirmed as
modified.
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Ariel Baker Paniagua on one count of
murder, three counts of attempted murder, two counts of
shooting at an occupied motor vehicle, and one count of
possession of a firearm by a felon. The jury also found true
firearm allegations in connection with each of the offenses and,
with one exception, gang allegations. The trial court sentenced
Paniagua to a prison term of 268 years four months to life.
Paniagua appealed, contending, among other things, his
sentence on one of his two convictions for shooting at an occupied
motor vehicle incorrectly reflected a true finding on a gang
allegation. Paniagua also argued the trial court should have an
opportunity to exercise its discretion whether to strike his prior
serious felony conviction under Penal Code section 667,
subdivision (a).1 We affirmed the judgment in most respects and
directed the trial court to correct several sentencing and other
errors, to exercise its discretion whether to strike the five-year
enhancement under section 667, subdivision (a), and to consider
the effect, if any, of Senate Bill No. 136 on a prior prison term
enhancement under section 667.5, subdivision (b). (People v.
Paniagua (Nov. 4, 2019, B289253) [nonpub. opn.] (Paniagua I).)
On remand the trial court corrected the errors we discussed in
Paniagua I, declined to exercise its discretion to strike the five-
year enhancement under section 667, subdivision (a), and struck
the prior prison term enhancement under section 667.5,
subdivision (b).
1 Undesignated statutory references are to the Penal Code.
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Paniagua appealed again. He argues, the People concede,
and we agree the trial court committed two additional sentencing
errors on Paniagua’s conviction for shooting at an occupied motor
vehicle. First, the trial court erred in imposing firearm
enhancements under section 12022.53, subdivisions (b) and (c),
because those enhancements do not apply to a conviction for
shooting at an occupied motor vehicle. Second, the trial court
erred in imposing a firearm enhancement under section 12022.5,
subdivision (a), because that enhancement does not apply where,
as here, use of a firearm is an element of the offense. Therefore,
we modify the judgment to strike these enhancements and affirm
the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Paniagua of Multiple Crimes,
Paniagua Appeals, and We Reverse In Part
In October 2015 Paniagua went on a shooting spree. In one
shooting, Paniagua fired a gun into a car with three people in it.
One of the bullets hit a car parked down the street and killed
someone in it. In another shooting, Paniagua fired a gun into
another occupied car. (Paniagua I, supra, B289253.)
In connection with the first shooting, the People charged
Paniagua with murder (§ 187, subd. (a), count 1), attempted,
willful, deliberate, and premeditated murder (§§ 187, subd. (a),
664, counts 2 through 4), and shooting at an occupied motor
vehicle (§ 246, count 5). In connection with the second shooting,
the People charged Paniagua with shooting at an occupied motor
vehicle (§ 246, count 7) and possession of a firearm by a felon
(§ 29800, subd. (a)(1), count 9). The People alleged that Paniagua
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committed all of the offenses for the benefit of, at the direction of,
or in association with a criminal street gang, with the specific
intent to promote, further, or assist in criminal conduct by gang
members, within the meaning of section 186.22,
subdivision (b)(1); that in committing the offenses related to the
first shooting he personally and intentionally discharged a
firearm causing great bodily injury or death, within the meaning
of section 12022.53, subdivision (d); and that in committing the
offense related to the second shooting (count 7) he personally and
intentionally discharged a firearm, within the meaning of section
12022.53, subdivision (c), and personally used a firearm, within
the meaning of section 12022.5, subdivision (a), and section
12022.53, subdivision (b). The jury found Paniagua guilty on all
counts and found true all the allegations except the gang
allegation related to count 7. Paniagua admitted that he had
been convicted of a prior serious or violent felony within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), that the felony was a serious felony within the
meaning of section 667, subdivision (a), and that he had served a
prior prison term, within the meaning of section 667.5,
subdivision (b).
In March 2018 the trial court sentenced Paniagua to prison
for 268 years four months to life and imposed and stayed
execution of additional terms. On the conviction for the second
shooting at an occupied motor vehicle, count 7 (the subject of this
appeal), the court sentenced Paniagua to a term of three years
four months, plus 20 years for the firearm enhancement under
section 12022.53, subdivision (c), plus five years for the prior
serious felony conviction under section 667, subdivision (a). The
court stated that section 186.22, subdivision (b)(4)(B), “mandates
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a sentence of life, with a minimum term of that indeterminate
sentence being 15 years.”2 Finally, the court imposed and stayed
a 10-year term under section 12022.53, subdivision (b), and the
upper term of 10 years under section 12022.5, subdivision (a).3
Paniagua appealed. He argued that, on his conviction for
shooting at an occupied motor vehicle in count 7, the trial court
erred in imposing the gang enhancement4 and that the minute
order erroneously reflected a true finding on the gang allegation
for that count. Paniagua also asked us to remand the matter for
the trial court to exercise its discretion whether to strike the
prior serious felony conviction under section 667, subdivision (a).
We agreed that the sentence imposed on count 7 for the gang
2 As discussed, the court erroneously imposed this term
because the jury found the gang allegation related to count 7 not
true.
3 The court cited the seriousness of Paniagua’s crimes,
stating: “The circumstances of the present case are so extreme
and demonstrate a lawlessness from Mr. Paniagua and such a
commitment to his gang and the gang lifestyle and put the
community—killing an absolutely—I mean, everybody involved
in the case was innocent, but the person who was killed was just
a regular guy, going to his car, and because of Mr. Paniagua’s
gang commitment and his willingness to spray bullets through
the air of our community and let the chips fall where they may,
an innocent man is dead for no reason.”
4 Technically, section 186.22, subdivision (b)(4)(B), “is not an
enhancement, but rather an ‘alternative penalty provision,’
meaning it sets forth an alternative penalty for the underlying
offense if the jury finds the conditions specified in the provision
have been satisfied.” (People v. Leon (2016) 243 Cal.App.4th
1003, 1011, fn. 8; see People v. Jones (2009) 47 Cal.4th 566, 576.)
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allegation was unauthorized and that the minute order
incorrectly reflected a true finding on the gang allegation. We
directed the trial court to correct this and other errors, to exercise
its discretion whether to strike the prior serious felony conviction
under section 667, subdivision (a), and to consider the effect, if
any, of Senate Bill No. 136 on the enhancement under section
667.5, subdivision (b).5 (Paniagua I, supra, B289253.)
B. The Trial Court Resentences Paniagua
The trial court resentenced Paniagua in June 2021. As
relevant to this appeal, the court acknowledged the sentencing
error on count 7 and stated, “There’s no sentence whatsoever on
[the] gang allegation.” The court also struck the portions of the
minute order that stated the jury had found the gang allegation
true and that the court had imposed a term of 15 years to life for
the true finding. The court also struck the one-year enhancement
because section 667.5, subdivision (b), as amended by Senate Bill
5 At the time the trial court sentenced Paniagua in 2018,
section 667.5, subdivision (b), required the court to impose a one-
year enhancement for each true finding “the defendant had
served a separate prior prison term and had not remained free of
custody for at least five years.” (People v. Jennings (2019)
42 Cal.App.5th 664, 681.) Senate Bill No. 136, effective
January 1, 2020, amended section 667.5, subdivision (b), by
limiting the applicability of the one-year prior prison term
enhancement to defendants who served a prior prison sentence
for a sexually violent offense, as defined in Welfare and
Institutions Code section 6600, subdivision (b). (Stats. 2019,
ch. 590, § 1; see People v. Griffin (2020) 57 Cal.App.5th 1088,
1092, review granted Feb. 17, 2021, S266521; People v. Shaw
(2020) 56 Cal.App.5th 582, 588.)
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No. 136, no longer applied to Paniagua’s prior prison term.
Finally, the court acknowledged it had discretion to strike the
prior serious felony allegation but declined to do so, stating that
Paniagua’s “record is obviously quite serious, and the crimes in
this case couldn’t be much more serious, and there were multiple
crimes for days, shooting guns on the streets of Los Angeles in
broad daylight.” Paniagua appealed again.
DISCUSSION
A. The Trial Court Erred in Imposing the Firearm
Enhancements on Count 7
Paniagua argues, the People concede, and we agree the
trial court erred in imposing the firearm enhancement under
section 12022.53, subdivision (c), on count 7. Section 12022.53,
subdivisions (b)-(d), provide for enhancements where the
defendant uses or personally and intentionally discharges a
firearm in the commission of certain felonies. Section 12022.53,
subdivision (a), lists most of those felonies. (See People v.
Anderson (2020) 9 Cal.5th 946, 950-951 [section 12022.53
“‘imposes sentence enhancements for firearm use applicable to
certain enumerated felonies,’” where the “‘enhancements vary in
length, corresponding to various uses of a firearm’”]; People v.
Fialho (2014) 229 Cal.App.4th 1389, 1395 [section 12022.53
applies “to an enumerated list of felony offenses”].) As discussed,
the jury found true the allegation Paniagua personally and
intentionally discharged a firearm in the commission of shooting
at an occupied motor vehicle, in violation of section 246, and the
trial court imposed a 20-year enhancement under section
12022.53, subdivision (c). Section 246, however, is not one of the
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felonies listed in section 12022.53, subdivision (a). Section 246 is
listed in section 12022.53, subdivision (d), but the enhancement
only applies under that subdivision where the defendant
personally and intentionally discharges a firearm and
proximately causes great bodily injury or death. That did not
occur in connection with count 7; the shots Paniagua fired into
the second vehicle did not hit anyone.
Section 12022.53, subdivision (a)(17), provides the firearm
use enhancement also applies to any felony “punishable by death
or imprisonment in the state prison for life.” As discussed, the
trial court initially imposed a sentence of 15 years to life for a
true finding on the gang allegation for count 7. (See People v.
Brookfield (2009) 47 Cal.4th 583, 591 [“Because the felony that
defendant committed (shooting at an inhabited dwelling) was
punishable by a life term under section 186.22(b)(4) (because it
was committed to benefit a criminal street gang), he committed a
‘felony punishable by . . . imprisonment in the state prison for life’
within the meaning of subdivision (a)(17) of section 12022.53.”].)
But that was a mistake: The jury actually found that gang
allegation not true, and at resentencing the court struck that
term. Therefore, the sentence on count 7 was no longer a life
sentence, and the trial court erred in imposing the firearm
enhancement under section 12022.53, subdivision (c). For the
same reason, the court erred in imposing and staying execution of
the firearm enhancement under section 12022.53, subdivision (b).
(See People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 [“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 and any section 12022.5 firearm enhancements
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that were found true for the same crime must be imposed and
then stayed”].)
Paniagua also argues, the People concede, and we agree the
firearm enhancement under section 12022.5, subdivision (a), does
not apply to his conviction for shooting at an occupied motor
vehicle. Section 12022.5, subdivision (a), provides that any
person who personally uses a firearm in the commission of a
felony or attempted felony shall be punished by an additional
term of imprisonment, “unless use of a firearm is an element of
that offense.” Firearm use is an element of the offense of
shooting at an occupied motor vehicle. (See § 246 [“[a]ny person
who shall maliciously and willfully discharge a firearm at an . . .
occupied motor vehicle . . . is guilty of a felony”]; People v.
Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527 [“firearm use
is a necessary element of the offense of discharging a firearm at
an occupied motor vehicle”].) Therefore, section 12022.5,
subdivision (a), does not apply to count 7. (See People v. Kramer
(2002) 29 Cal.4th 720, 723, fn. 2 [section 12022.5, subdivision (a),
does not apply to the crime of discharging a firearm at an
occupied motor vehicle because firearm use is an element of the
underlying offense].)
B. Remand Is Not Necessary
Citing People v. Buycks (2018) 5 Cal.5th 857, Paniagua
contends that, in addition to striking the unauthorized firearm
enhancements, we should remand the matter to allow the trial
court to conduct “‘“a full resentencing as to all counts.”’” The
People argue that we should modify the judgment to correct the
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sentencing errors without remanding. Remand is not
appropriate in this case.
Appellate courts have the authority to modify an
unauthorized sentence without remanding the case for the trial
court to correct the error. (§ 1260; see People v. Thomas (2012)
53 Cal.4th 771, 837 [modifying the judgment to correct an
erroneous sentence that did not reflect the jury’s verdict]; People
v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198 [modifying the
judgment to correct the erroneous application of the “‘one-third-
the-midterm rule’” of section 1170.1, subdivision (a)].) “‘When
sentencing error does not require additional evidence, further fact
finding, or further exercise of discretion, the appellate court may
modify the judgment appropriately and affirm it as modified.’”
(People v. Harbison (2014) 230 Cal.App.4th 975, 986; see People v.
Haskin (1992) 4 Cal.App.4th 1434, 1441.)
Correcting the unauthorized portions of Paniagua’s
sentence on count 7 does not require additional evidence, fact
finding, or further exercise of discretion. Indeed, at resentencing,
the trial court declined to exercise its discretion to strike the
prior serious felony conviction under section 667, subdivision (a),
or to modify the judgment other than as we directed. In addition,
no other part of Paniagua’s aggregate sentence depends on the
three, now-stricken firearm enhancements (two of which the trial
court stayed execution of). (Cf. People v. Valenzuela (2019)
7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court
to revisit all prior sentencing decisions when resentencing a
defendant,” for example, “when a felony conviction supplying a
principal sentence term is reversed on appeal and the case
returns to the trial court for resentencing, that court must select
another conviction, if it exists, to supply the new principal term”];
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People v. Buycks, supra, 5 Cal.5th at p. 894 [when resentencing a
defendant under section 1170.18, subdivision (a), the court must
“resentence the defendant generally and must therefore
reevaluate the continued applicability of any enhancement based
on a prior felony conviction”].)
Paniagua argues we should remand the matter “‘“so the
trial court can exercise its sentencing discretion in light of the
changed circumstances.”’” Paniagua, however, does not identify
what discretion remains for the trial court to exercise. Moreover,
the trial court imposed consecutive sentences on each count and,
stating Paniagua committed “an appalling set of crimes,” the
court declined to strike Paniagua’s prior serious or violent felony
conviction under the three strikes law or the firearm
enhancements under section 12022.53, subdivision (h). The court
also selected the upper term on the firearm enhancement under
section 12022.5, subdivision (a), and commented on Paniagua’s
egregious conduct and senseless violence, both at the initial
sentencing hearing and at resentencing. As a result, the court
essentially imposed the maximum possible sentence. There is no
realistic possibility remand would accomplish anything. (See
People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15 [“Because the
resentencing court had imposed the maximum possible sentence
. . . there is no need to remand the matter to the trial court to
exercise its sentencing discretion anew.”]; People v. Lopez (2019)
42 Cal.App.5th 337, 342 [“Because the trial court imposed the
maximum possible sentence, there is no need for the court to
again exercise its sentencing discretion.”]; People v. Franks (2019)
35 Cal.App.5th 883, 893 [the record “affirmatively demonstrates
that the trial court was not inclined towards leniency and would
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not exercise its new discretion to strike defendant’s
enhancement”].)
DISPOSITION
The judgment is modified to strike the firearm
enhancements on count 7. As modified, the judgment is affirmed.
The trial court is directed to correct the abstract of judgment and
send a copy of the amended abstract to the Department of
Corrections and Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J.
WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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