People v. Acosta CA2/7 ( 2021 )

Filed 3/23/21 P. v. Acosta CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306034
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA451969-01)
v.
ANDY BRIAN ACOSTA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Henry J. Hall, Judge. Affirmed.
Robert L.S. Angres, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________
Andy Brian Acosta appeals from the judgment entered
following a resentencing hearing ordered by this court in Acosta’s
prior appeal (People v. Acosta (Nov. 18, 2019, B287760) [nonpub.
opn.]). No arguable issues were identified by Acosta’s appointed
appellate counsel after his review of the record. We also have
identified no arguable issues after our own independent review of
the record. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Acosta was charged in an information with the first degree
murder of Danny Chea (Pen. Code, § 187, subd. (a);1 count 1), the
attempted premeditated murder of Amber Campos (§§ 187,
subd. (a), 664; count 2), assault with a firearm of Abel R. (§ 245,
subd. (a)(2); count 3), unlawful possession of a firearm (§ 29800,
subd. (a)(1); count 4) and shooting at an occupied motor vehicle
(§ 246; count 5). The information alleged Acosta had committed
all five offenses for the benefit of a criminal street gang.
(§ 186.22, subd. (b).) The information also specially alleged as to
counts 1 and 5 Acosta had personally and intentionally
discharged a firearm causing great bodily injury or death
(§ 12022.53, subd. (d)), as to count 2 he had personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)) and as
to count 3 he had personally used a firearm (§ 12022.5, subd. (a)).
2. The Shooting
In October 2016 Chea and Campos were in a long-term
romantic relationship. Chea was a member of the Lincoln Heights
criminal street gang. On October 24, 2016 Chea drove Campos to
pick up Campos’s son, Abel, from elementary school. Inside the
1 Statutory references are to this code.
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school Campos saw Jason Avalos, a member of the Eastlake
criminal street gang. Avalos gave Campos an “ugly look[ ],” then
made a telephone call. When Campos returned to the car with
Abel, she told Chea she had seen Avalos. The three left for
Campos’s home. Chea was driving; Campos sat in the front
passenger seat next to him; Abel sat in the rear seat behind
Chea.
While the three were stopped at an intersection, a car
driven by Acosta pulled up on the passenger side. Campos saw
Acosta holding an automatic weapon. (Campos subsequently
identified Acosta as the shooter in a photographic lineup.) She
did not see anyone else in the car. Acosta fired two or three shots,
killing Chea. Before he was shot, Chea told Campos that “Rana
from Eastlake” was in the car next to them. Several Los Angeles
Police Officers who had contact with Acosta documented that he
had admitted being a member of the Eastlake criminal street
gang and used the name “Rana.”
3. The Verdict and Sentence
Following a six-day trial the jury convicted Acosta on all
counts and found the criminal street gang and firearm
enhancements true. Acosta admitted the allegation he had
suffered a prior felony conviction for which he served a prison
term.
The trial court sentenced Acosta to what it characterized as
a life term with 80 years minimum parole eligibility plus a
determinate term of 44 years eight months. For the first degree
murder of Chea, the court imposed an indeterminate state prison
term of 25 years to life, plus 25 years to life for the firearm
3
enhancement.2 For the attempted premeditated murder of
Campos, the court sentenced Acosta to a life term with 15-year
minimum parole eligibility, plus 20 years for the firearm
enhancement. Selecting the aggravated assault of Abel (count 3)
for the base determinate term, the court imposed the upper term
of four years plus the upper term of 10 years for the firearm
enhancement and 10 years for the gang enhancement. It
imposed a consecutive term of eight months (one-third the middle
term of two years) for unlawful possession of a firearm and
dismissed the gang enhancement in the interest of justice.
Finally, the court imposed a consecutive life term with a 15-year
minimum parole eligibility under section 186.22,
subdivision (b)(4), for shooting at an occupied vehicle for the
benefit of a criminal street gang. The court declined to stay the
sentence of this court under section 654, reasoning, “Consecutive
sentencing is warranted by the fact that we have a separate
innocent victim,” noting in part Chea’s car crashed into an
occupied restaurant after he had been shot.3
4. Acosta’s First Appeal
On appeal we agreed with Acosta that substantial evidence
did not support the court’s application of the multiple victim
2 The court did not impose the 15-year minimum parole
eligibility term under section 186.22, subdivision (b)(5), for the
gang enhancement, finding, incorrectly, it was superseded by the
25-year-to-life sentence for first degree murder. (See People v.
Lopez (2005) 34 Cal.4th 1002, 1009.) We directed the court on
remand to impose the 15-year parole eligibility term or to strike
the enhancement (§ 1385, subd. (a)) or the punishment for the
enhancement (§ 186.22, subd. (g)).
3 The court struck the prior prison term enhancement.
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exception for shooting at an occupied vehicle because the conduct
underlying the murder, attempted murder and aggravated
assault offenses was an indivisible course of conduct directed
against, at most, Chea, Campos and Abel. Even though Chea’s
car crashed after he was shot, there was insufficient evidence
anyone other than the three occupants of the vehicle had been
victimized by the shooting.
We also agreed with Acosta—and the Attorney General
conceded—that under People v. Rodriguez (2009) 47 Cal.4th 501,
508-509, the trial court had erred in imposing both the 10-year
firearm enhancement under section 12022.5, subdivision (a), and
a 10-year gang enhancement under section 186.22,
subdivision (b)(1)(C), on the aggravated assault count. As was
true in Rodriguez, Acosta was subject to the 10-year punishment
for a violent felony committed for the benefit of a criminal street
gang under section 186.22, subdivision (b)(1)(C), only because his
use of a firearm had been charged and proved under
section 12022.5. Accordingly, section 1170.1, subdivision (f),
required the court to impose only one firearm-based enhancement
for a single offense.
We affirmed Acosta’s convictions,4 reversed his sentence
and remanded with directions to the trial court to exercise its
discretion whether to impose on count 3 the firearm enhancement
under section 12022.5, subdivision (a), or the gang enhancement
under section 186.22, subdivision (b)(1)(C), and to stay the
sentence pursuant to section 654 on one of counts 1, 2, 3 or 5.
4 We found the trial court had disclosed all relevant material
at the Pitchess hearing.
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5. Resentencing
On remand the trial court, stating its intention to impose
the maximum sentence authorized by law,5 imposed what it
characterized as a 23-year determinate state prison term plus life
with an 80-year minimum eligibility for parole. The court
sentenced Acosta to the upper term of three years for unlawful
possession of a firearm (count 4), dismissing the gang
enhancement on that count. The court imposed the upper term of
four years for aggravated assault (count 3), plus the upper term,
10-year firearm enhancement, striking the gang enhancement, as
directed by our decision in the first appeal, pursuant to
section 1170.1, subdivision (f). The court then stayed the 14-year
aggregate sentence on count 3 pursuant to section 654,
explaining it was going to impose the sentence for shooting at an
occupied vehicle for the benefit of a criminal street gang
(count 5), which included a life term.
As to the murder count, the court again imposed a 25-year-
to-life indeterminate term, now with a 15-year minimum parole
eligibility for the gang enhancement, plus 25 years to life for the
firearm enhancement. For attempted murder the court imposed
a consecutive life term with a 15-year minimum parole eligibility,
5 Before imposing sentence the court stated, “The
circumstances of the shooting in this case, which essentially was
the execution of an unsuspecting man and the attack on a young
woman with a small child, from the evidence committed for
nothing more apparently than the fact the victims had the
audacity to pick up a small child at a public school in the
territory of a rival gang. The senselessness and wantonness of
this crime as demonstrated by the facts of this case render the
defendant a continuing danger to the community and demand his
removal from the community for as long as possible.”
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plus a determinate 20-year term for the firearm enhancement.
And a third consecutive life term with a 15-year minimum parole
eligibility was imposed for shooting at an occupied vehicle.
The court ordered the $300 restitution fine it had
previously imposed stayed until the People provided proof of
Acosta’s ability to pay and waived all other fees and assessments.
Acosta filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Acosta on appeal. After
reviewing the record, counsel filed a brief raising no issues.
Appointed counsel advised Acosta on September 3, 2020 that he
may personally submit any contentions or issues he wanted the
court to consider. We received no response from appellant.
We have examined the record and are satisfied appellate
counsel for Acosta has complied with counsel’s responsibilities
and there are no arguable issues. (Smith v. Robbins (2000)
528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-
119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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