People v. Paniagua CA2/7 ( 2022 )

Filed 2/28/22 P. v. Paniagua CA2/7
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
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. Remanded with
directions.
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. He argued, 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.
2
Paniagua appealed again. He contended, and the People
conceded, 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. We
accepted the People’s concession, and on January 12, 2022 we
filed our original opinion in this case. We modified the judgment
to strike the firearm enhancements on count 7 and affirmed the
judgment as modified.
On January 25, 2022 Paniagua filed a petition for
rehearing, arguing several new sentencing laws that went into
effect on January 1, 2022 applied to him: (1) Senate Bill No. 567
(2021-2022 Reg. Sess.), which amended section 1170 to (among
other things) limit the trial court’s discretion to impose the upper
term of imprisonment and to require the court in certain
circumstances to impose the lower term of imprisonment
(Stats. 2021, ch. 731, § 1.3); (2) Assembly Bill No. 518 (2021-2022
Reg. Sess.), which amended section 654 to no longer require the
court to impose a sentence based on the longest possible term
where an act or omission is punishable in different ways by
different provisions of the law (Stats. 2021, ch. 441, § 1); and
(3) Senate Bill No. 81 (Stats. 2021, ch. 721, § 1), which added
section 1385, subdivision (c), to require the court to dismiss an
enhancement in certain circumstances “if it is in the furtherance
of justice to do so.” We granted the petition and now conclude the
3
new laws apply to Paniagua. Therefore, we direct the trial court
to strike the enhancements under sections 12022.53,
subdivisions (b) and (c), and 12022.5, subdivision (a) (as we had
done in our original opinion) and to resentence Paniagua in
accordance with the new sentencing laws.
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
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
4
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 court
sentenced Paniagua to three years four months (one-third the
middle term of five years, doubled under the three strikes law),
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 a
sentence of life, with a minimum term of that indeterminate
sentence being 15 years.” 2 Finally, the court imposed and stayed
2 As discussed, the court erroneously imposed this term
because the jury found the gang allegation related to count 7 not
true.
5
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
allegation was unauthorized and that the minute order
incorrectly reflected a true finding on the gang allegation for that
count. 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
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.)
6
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
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
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.)
7
crimes for days, shooting guns on the streets of Los Angeles in
broad daylight.”
C. Paniagua Appeals Again, We Modify the Judgment,
and Paniagua Petitions for Rehearing
In this appeal, Paniagua contends the trial court erred in
imposing the firearm enhancements on count 7. The People
concede, and we agree, the court erred. In our original opinion,
instead of remanding the matter for the trial court to resentence
Paniagua, as Paniagua had requested, we modified the judgment.
We concluded that the court essentially imposed the maximum
possible sentence and that, given the court’s comments at both
the sentencing and resentencing hearings, there was no realistic
possibility the court would impose a lower sentence.
Paniagua filed a petition for rehearing. He argued he is
entitled to resentencing under Senate Bill No. 567, which
amended section 1170; Assembly Bill No. 518, which amended
section 654; and Senate Bill No. 81, which amended section 1385.
He asked us to direct the trial court to resentence him under
these new sentencing laws. After the People filed an answer, we
granted the petition for rehearing and vacated our prior opinion.
DISCUSSION
A. The Trial Court Erred in Imposing the Firearm
Enhancements on Count 7
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
8
firearm in committing 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
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’
9
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
that were found true for the same crime must be imposed and
then stayed”].)
The firearm enhancement under section 12022.5,
subdivision (a), also does not apply to Paniagua’s 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,
10
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 Necessary
Paniagua argues in his petition for rehearing Senate Bill
No. 567, Assembly Bill No. 518, and Senate Bill No. 81, all of
which went into effect while his appeal was pending, apply to
him. Paniagua asserts that, under these new laws, the court
could impose the lower term of imprisonment on counts 5, 7,
and 9, that the court could choose to stay execution of the
sentence imposed on a count with the longest potential term of
imprisonment, and that the court could exercise its discretion to
strike one of the enhancements. The People argue that Paniagua
forfeited this argument, but concede that, if he did not, he is
entitled to the benefit of the new sentencing laws.
Paniagua did not forfeit his argument. The People contend
Paniagua should have argued he was entitled to the benefit of the
new sentencing laws prior to January 6, 2022, when we
submitted the matter, either by raising the issue in his opening
brief (filed October 12, 2021) or reply brief (filed November 8,
2021), or by asking for leave to file a supplemental brief. The
People argue that, because the Governor signed Assembly Bill
No. 518 on October 1, 2021 and Senate Bill Nos. 81 and 567 on
October 8, 2021, Paniagua “had constructive notice of Assembly
Bill 518 and Senate Bills 81 and 567 . . . before he filed his
Opening and Reply Briefs.” We do not agree with the People
such legislative clairvoyance is required to avoid forfeiture. Even
the most diligent attendees of continuing legal education
programs are entitled to a little time to learn and digest new laws
11
enacted by the Legislature. Paniagua’s modest delay in bringing
his petition for rehearing, filed within a few weeks of the new
statutes’ effective date, did not forfeit his argument he is entitled
to their benefit. Paniagua is entitled to the benefit of the new
sentencing laws.
1. Applicable Law
“When new legislation reduces the punishment for an
offense, we presume that the legislation applies to all cases not
yet final as of the legislation’s effective date.” (People v. Esquivel
(2021) 11 Cal.5th 671, 673; see People v. Gentile (2020) 10 Cal.5th
830, 852; In re Estrada (1965) 63 Cal.2d 740, 745.) “‘The Estrada
rule rests on an inference that, in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final
and sentences that are not.’” (People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 308; see People v. Frahs (2020) 9 Cal.5th
618, 628 [“If there is no express savings clause, the statute must
demonstrate contrary indications of legislative intent ‘“with
sufficient clarity”’ in order to rebut the Estrada rule.”]; People v.
Flores (2022) 73 Cal.App.5th 1032, 1039 [same].) “‘[F]or the
purpose of determining retroactive application of an amendment
to a criminal statute, a judgment is not final until the time for
petitioning for a writ of certiorari in the United States Supreme
12
Court has passed.’” (People v. Vieira (2005) 35 Cal.4th 264, 306;
accord, Flores, at p. 1039.)
2. Senate Bill No. 567, Assembly Bill No. 518, and
Senate Bill No. 81 Apply to Paniagua
Senate Bill No. 567 amended section 1170, subdivision (b),
“by making the middle term the presumptive sentence for a term
of imprisonment unless certain circumstances exist.” (People v.
Flores, supra, 73 Cal.App.5th at p. 1038, fn. omitted; see § 1170,
subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) Senate Bill
No. 567 also added a provision that requires the court to impose
the lower term of imprisonment if any of certain facts in the
defendant’s background “was a contributing factor in the
commission of the offense,”6 “unless the court finds that the
aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be
contrary to the interests of justice.” (§ 1170, subd. (b)(6), added
by Stats. 2021, ch. 731, § 1.3; see Flores, at pp. 1038-1039.)
Because new section 1170, subdivision (b), may lessen Paniagua’s
punishment, it is an ameliorative change in the law that applies
to his nonfinal convictions. (See Flores, at p. 1039 [section 1170,
subdivision (b), applies to all nonfinal convictions on appeal]; see
also People v. Stamps (2020) 9 Cal.5th 685, 699 [statute that
gives trial courts discretion to strike a prior serious felony
6 The circumstances requiring the court to impose the lower
term of imprisonment include that the person “has experienced
psychological, physical, or childhood trauma” and that the person
“is a youth, or was a youth [i.e., under 26 years of age] at the time
of the commission of the offense.” (§ 1170, subd. (b)(6); see
§ 1016.7.)
13
enhancement under section 667, subdivision (a), applies
retroactively]; People v. Superior Court (Lara), supra, 4 Cal.5th at
p. 303 [voter initiative that requires the juvenile court to have a
transfer hearing before a juvenile defendant can be tried and
sentenced as an adult applies retroactively].)
Assembly Bill No. 518 amended section 654,
subdivision (a), to provide: “An act or omission that is punishable
in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or
omission be punished under more than one provision.”
(Stats. 2021, ch. 441, § 1.) Previously, under section 654 “the
sentencing court was required to impose the sentence that
‘provides for the longest potential term of imprisonment’ and stay
execution of the other term. [Citation.] . . . [S]ection 654 now
provides the trial court with discretion to impose and execute the
sentence of either term, which could result in the trial court
imposing and executing the shorter sentence rather than the
longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343,
379.) Because Assembly Bill No. 518, like Senate Bill No. 567,
may result in a shorter term of imprisonment, it too applies
retroactively to Paniagua’s nonfinal convictions. (See ibid.[“defendant is entitled to [the] ameliorative benefit” of Assembly
Bill No. 518]; see also People v. Stamps, supra, 9 Cal.5th at
p. 699; People v. Superior Court (Lara), supra, 4 Cal.5th at
p. 303.) Remand is therefore necessary for the court to
resentence Paniagua under amended sections 1170,
subdivision (b), and 654. (See Mani, at p. 381; People v. Flores,
supra, 73 Cal.App.5th at p. 1039.) And in light of the “‘changed
circumstances,’” a “‘full resentencing as to all counts is
appropriate.’” (People v. Buycks (2018) 5 Cal.5th 857, 893;
14
see 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”]; People v. Choi (2021)
59 Cal.App.5th 753, 770 [“In the absence of the two 1-year prior
prison term enhancements, the court may reevaluate its
sentencing decisions in light of the changed circumstances.”].)
At resentencing, Paniagua will also be entitled to the
benefit of Senate Bill No. 81, which amended section 1385 “to
specify factors that the trial court must consider when deciding
whether to strike enhancements from a defendant’s sentence in
the interest of justice.” (People v. Sek (Feb. 1, 2022, B309003)
___ Cal.App.5th ___, ___ [2022 WL 292614, p. 8]; see Stats. 2021,
ch. 721, § 1.) New section 1385, subdivision (c), provides:
“(1) Notwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except
if dismissal of that enhancement is prohibited by any initiative
statute. [¶] (2) In exercising its discretion under this subdivision,
the court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating
circumstances . . . are present. Proof of the presence of one or
more of these circumstances weighs greatly in favor of dismissing
the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” 7 Senate Bill No. 81
does state section 1385, subdivision (c), shall apply to
7 The mitigating circumstances include that multiple
enhancements “are alleged in a single case,” that the application
of an enhancement “could result in a sentence of over 20 years,”
and that the current offense “is connected to prior victimization
or childhood trauma.” (§ 1385, subd. (c)(3).)
15
“sentencings occurring after the effective date of the act that
added this subdivision.” (See § 1385, subd. (c)(7).) But because
Paniagua will be resentenced, new section 1385, subdivision (c),
will apply to that sentencing proceeding. (See Sek, at p. ___ [p. 8]
[Senate Bill No. 81 applies to resentencing proceedings after its
effective date].)
Finally, on count 5 the court imposed and stayed execution
of one-third the middle term of five years (doubled under the
three strikes law), plus terms for the firearm enhancement and
gang penalty, and on count 9 the court imposed and stayed
execution of one-third the middle term of two years (doubled
under the three strikes law). That was error.8 In resentencing
Paniagua, the court must impose the full term on any counts on
which the court stays execution of the sentence (e.g., counts 5
and 9). (See People v. Relkin (2016) 6 Cal.App.5th 1188,
1197-1198 [“‘The one-third-the-midterm rule of section 1170.1,
subdivision (a), only applies to a consecutive sentence, not to a
sentence stayed under section 654.’”].) The court must also
select, from the counts subject to a determinate sentence, the
count with the greatest term of imprisonment and impose the full
term on that count. (§ 1170.1, subd. (a); see People v. Sasser
8 The court also erred in imposing a determinate term on
count 5 (§ 246). When the crime of shooting at an occupied motor
vehicle “is committed to benefit a criminal street gang,” which the
jury here found, “the penalty is life imprisonment, with a
minimum term of no less than 15 years.” (People v. Brookfield,
supra, 47 Cal.4th at p. 591; see § 186.22, subd. (b)(4)(B).) Of
course, if the trial court strikes the gang allegation, section
186.22, subdivision (b)(4)(B), would no longer apply to the
sentence on count 5.
16
(2015) 61 Cal.4th 1, 8-9 [describing the requirements under the
determinate sentencing law for multiple convictions]; People v.
Felix (2000) 22 Cal.4th 651, 659 [“sentences of some number of
years to life are indeterminate sentences not subject to the”
determinate sentencing law]; People v. Minifie (2018)
22 Cal.App.5th 1256, 1264 [sentencing for indeterminate crimes
and determinate crimes “‘must be performed separately and
independently of each other’”]; Cal. Rules of Court, rule 4.451(a).)
DISPOSITION
Paniagua’s sentences are vacated. The trial court is
directed to strike the firearm enhancements on count 7 and to
resentence Paniagua in accordance with Senate Bill Nos. 567
and 81 and Assembly Bill No. 518 and in compliance with section
1170.1, subdivision (a). The trial court is also directed to impose
full terms on any stayed sentences.
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.
17