People v. Medina CA2/5 ( 2013 )

Filed 11/6/13 P. v. Medina CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B246519
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA120336)
v.
DAVID MEDINA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Laura R.
Walton, Judge. Affirmed in part, modified in part, and remanded with directions.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant, David Medina, of first degree murder (Pen. Code, §
187, subd. (a))1 and two counts of attempted willful, deliberate, premeditated murder (§§
664, 187, subd. (a).) The jury further found criminal street gang and firearm use
allegations to be true. (§§186.22, subd. (b)(1)(C); 12022.53, subds. (b), (c) & (d).) The
trial court found a single prior serious felony conviction and two prior separate prison
term allegations were true. (§§ 667, subds. (b)-(i); 667.5, subd. (b); 1170.12.) Defendant
was sentenced to 185 years to life in state prison. We affirm in part, modify in part, and
remand with directions to impose or strike prior separate prison term enhancements.
II. THE EVIDENCE
A. The Prosecution Case
1. The shootings
Defendant and Jesse Medina are brothers.2 On October 9, 2011, defendant and
Jesse Medina were in Hollywood. Defendant was a gang member, but Jesse was not.
Jesse was shot and died at the hospital. The primary suspect was arrested that night and
remained in custody at the time of trial. There were no other potential suspects. The
suspect was not a documented gang member, but his father was a hard-core “original
gangster” from a rival gang.
On October 10, 2011, defendant armed himself with a loaded weapon and rode a
bicycle to a park in South Central Los Angeles. There were a number of people in the
park—men, women and children. The park was frequented by members of the rival
gang. Defendant approached three individuals—rival gang members Christian Perez and
1 Future statutory references are to the Penal Code unless otherwise indicated.
2To avoid confusion, because defendant and his brother have the same surname,
we refer to Jesse Medina by his first name.
2
Oscar Valenciano and a companion, Johanna Gonzalez. Mr. Perez had conspicuous gang
tattoos. Because he was not wearing a shirt, his gang tattoos were visible to people
walking past. Defendant walked up to the three individuals and uttered words
disrespectful of the rival gang. He pointed the gun at Ms. Gonzalez’s face from 18 inches
away. Ms. Gonzalez said she “wasn’t from nowhere” in response to the gun being
pointed at her. Defendant then shot Mr. Valenciano and Mr. Perez. When Ms. Gonzalez
heard the first gunshot, she tried to run. Defendant shot Ms. Gonzalez in the leg and hip,
causing her to fall to the ground. As she lay on the ground, defendant shot her in the
back. He also tried to shoot her in the head, but the gun misfired. Ms. Gonzalez heard a
clicking sound. Defendant rode away on his bicycle. With police officers in pursuit,
defendant threw the gun under a school bus.
Mr. Valenciano died of multiple gunshot wounds. Ms. Gonzalez underwent a hip
replacement and had a metal plate in her leg. She had residual numbness in her back.
Mr. Perez was shot through the knee. The injury caused him to limp.
2. The gang evidence
Detective Roberto Bourbois testified as to the rival gangs. Detective Bourbois
was an experienced gang homicide investigator. Detective Bourbois was familiar with
defendant’s gang. It was a very small gang of about 60 members spread out across
southeast Los Angeles. The gang was associated with the Mexican Mafia. The gang’s
primary activities included attempted murder and street robberies.
The victims’ gang was one of the oldest Hispanic gangs in Los Angeles. It had
been aligned with the Mexican Mafia from time to time. Gang members were found in
Hollywood as well as west of downtown and other areas.
Detective Bourbois described the importance of respect in gang culture: “[T]o
have respect is above all important in the gang culture. If you don’t have respect, you’re
not much of a gang. [¶] Respect is taken. It’s taken . . . through intimidating the public.
It’s taken through standing up to the rivals, being involved in criminal activity. That’s
3
one of the components of what makes a gang. [¶] . . . I think respect in reality is more
fear. It’s an atmosphere where you create that fear in the community and, therefore, it’s
translated into respect. [¶] But if you don’t have that respect, then you’re not a gang.
You can’t function.”
Detective Bourbois further explained that retaliation is key to maintaining respect:
“[I]f an individual gang member is disrespected and he doesn’t immediately get
retaliation or pay back, if that doesn’t happen then they lose respect not only in the eyes
of their rivals but in their own gang. [¶] If you start to lose that respect, you start getting
kind of out of the circle of this gang environment where you’re not trusted because
you’re not willing to defend the honor of the gang.” When a gang member uses a catch
phrase to put down a rival gang member, the rival gang member is expected to retaliate.
Detective Bourbois also explained that gang members, whether perpetrator or victim, do
not cooperate with the authorities. A snitch will be severely hurt or killed. Community
members are also expected not to cooperate with the authorities. The gang creates an
atmosphere of intimidation to prevent community members from assisting law
enforcement.
Defendant’s gang and the victims’ gang had been rivals for at least 10 years. The
park where the shooting occurred was frequented by the victims’ gang. Defendant had
multiple gang tattoos on his head and torso, including his gang’s name. He also had the
initials of the gang’s name tattooed on his chest covering the entire front of his torso.
Detective Bourbois testified that a person who puts tattoos on his or her head and neck is
demonstrating a great deal of loyalty to the gang. A day after Jesse’s death, defendant
got a tattoo near his eye. The tattoo was of a crossed-out number signifying the rival
gang with a “K” next to it. According to Detective Bourbois, the tattoo showed
defendant was an enemy of the rival gang. The K was for kill. It meant defendant
wanted to harm or kill members of the rival gang.
In response to a hypothetical question tracking the facts of this case, Detective
Bourbois testified in his opinion the crime was committed for the benefit of the
assailant’s gang. The detective relied on the following hypothetical facts: the assailant
4
and the victims were rival gang members; the park was a known rival gang hangout; if
you wanted to find a member of the rival gang, you would go to that park; and the
shooting itself and the manner in which it was executed elevated the status of the
assailant’s gang. Detective Bourbois stated there could be a revenge component to the
crime. But when a gang, especially a small gang, is attacked by a rival, they must
retaliate or lose respect. Factors also showing a retaliatory motive included: the rival
gang was made up of pockets in different areas of the city that were associated in name
only; the park was geographically distant from the location where Jesse was killed; the
possibility that a gang member in the park was involved in Jesse’s murder was remote;
defendant’s newest tattoo indicated there would be retaliation; and the two gangs were
long-time rivals.
B. The Defense Case
Witnesses testified that at the hospital, while Jesse was in surgery, defendant was
acting desperate and crazy. Defendant was told Jesse was dead. Defendant then hit a
window. Defendant asked the doctors whether they had done everything they could to
save Jesse. After Jesse died and the family returned home, defendant’s condition
worsened. Defendant was seen talking to himself. Also, defendant was talking to Jesse,
who as noted was dead. Defendant’s sister, Evelyn Medina, testified: “He was talking to
himself. And he was talking to Jesse, telling him that why did he left him, that what is he
going to do now without him. [¶] And then just telling Jesse that he wasn’t going to
forgive him, that he told him that he wasn’t going to leave him and he left him. [¶] He
was saying that the reason he was doing good now was because of Jesse, and that God
just took him away from him . . . .” Ms. Medina testified, “[Defendant] was saying that it
should have been him, the one that had got killed, not Jesse, because he’s the one that has
all the tattoos and Jesse wasn’t gang related.”
Defendant’s girlfriend of 13 years, Jessica Schufford, testified that when defendant
called her from the hospital he was “hysterical” and “frantic.” At the hospital, defendant
5
said to Ms. Schufford: “Jessica, they shot my brother. They shot my brother. Why
would they want to shoot my brother? I was right there.” Ms. Schufford described
defendant’s relationship with Jesse: “It was very close. [Defendant] loved [Jesse] more
than anybody in the world.” After Jesse was shot, defendant was unable to sleep. The
inability to sleep continued until defendant was arrested. Defendant’s mental condition
deteriorated after Jesse was killed.
Defendant testified in his own defense as follows. He was a gang member. But
Jesse was not a gang member. On the night Jesse was shot, defendant heard one of those
involved yell out a number identifying the rival gang. After Jesse died, defendant was
depressed and unable to sleep. He had been using crystal methamphetamine every day
since before the shooting. Prior to Jesse’s death, defendant had no particular hatred of
the rival gang. Defendant testified he had not been “gang-banging” as he had been trying
to change his life. After Jesse died, defendant got a new tattoo. This was a way to
disrespect the rival gang. The only reason defendant went to the park, rival gang
territory, and got the new tattoo was that Jesse had been killed.
On the day after Jesse died, defendant rode a bicycle eight blocks to get a gun
from a friend’s house. Carrying the loaded weapon, defendant rode aimlessly screaming
out a gang slur at anyone who looked like a Latino gang member. Defendant testified he
was not: thinking straight; thinking about shooting anyone; and thinking past what he
was doing at the moment. Defendant testified he was angry and just mad at the world.
Defendant approached the three victims in the park. One of them said something to
defendant. Defendant became angry. One of the two men appeared to reach for a gun.
Then in response, defendant started firing his weapon. He did not remember pulling out
the gun. Defendant did not remember shooting Ms. Gonzalez. He was a little bit drunk
at the time, but he was not under the influence of methamphetamine.
6
III. DISCUSSION
A. Ineffective Assistance of Counsel: Provocation Instruction
Defense counsel, Mark Shapiro, asserted in the trial court: defendant was not
guilty of first degree murder; defendant’s actions were driven by intense emotions in the
aftermath of Jesse’s death; in other words, defendant did not act willfully, deliberately
and with premeditation. The jury was instructed that provocation, measured objectively,
can reduce an intentional killing from murder to manslaughter. The jury was not
instructed, however, that provocation inadequate to reduce murder to manslaughter may
nevertheless raise a reasonable doubt whether the defendant willfully killed with
deliberation and premeditation. (See CALCRIM No. 552; CALJIC No. 8.73)3 This
point of law is well established. (See People v. Avila (2009) 46 Cal.4th 680, 707; People
v. Carasi (2008) 44 Cal.4th 1263, 1306; People v. Rogers (2006) 39 Cal.4th 826, 877-
878; People v. Cole (2004) 33 Cal.4th 1158, 1217; People v. Wickersham (1982) 32
Cal.3d 307, 329, disapproved on another point in People v. Barton (1995) 12 Cal.4th 186,
201; People v. Valentine (1946) 28 Cal.2d 121, 132; People v. Thomas (1945) 25 Cal.2d
880, 903.) As Division One of the Court of Appeal for the Fourth Appellate District
explained in People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332: “First degree
murder is an unlawful killing with malice aforethought, premeditation, and deliberation.
3 CALCRIM No. 522 states: “Provocation may reduce a murder from first degree
to second degree [and may reduce a murder to manslaughter]. The weight and
significance of the provocation, if any, are for you to decide. [¶] If you conclude that the
defendant committed murder but was provoked, consider the provocation in deciding
whether the crime was first or second degree murder. [Also, consider the provocation in
deciding whether the defendant committed murder or manslaughter.]” CALJIC No. 8.73
similarly states: “If the evidence establishes that there was provocation which played a
part in inducing an unlawful killing of a human being, but the provocation was not
sufficient to reduce the homicide to manslaughter, you should consider the provocation
for the bearing it may have on whether the defendant killed with or without deliberation
and premeditation.”
7
(People v. Chun (2009) 45 Cal.4th 1172, 1181.) . . . Second degree murder is an
unlawful killing with malice, but without the elements of premeditation and deliberation
which elevate the killing to first degree murder. (Ibid.) To reduce a murder to second
degree murder, premeditation and deliberation may be negated by heat of passion arising
from provocation. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.) If the
provocation would not cause an average person to experience deadly passion but it
precludes the defendant from subjectively deliberating or premeditating, the crime is
second degree murder. (Ibid.)” (Accord, People v. Padilla (2002) 103 Cal.App.4th 675,
678.) The existence, extent and effect of provocation on the defendant’s mind in relation
to premeditation and deliberation are questions of fact for the jury to resolve. (People v.
Wolfe (1954) 42 Cal.2d 663, 673; People v. Thomas, supra, 25 Cal.2d at pp. 903-904.)
A trial court is not required to instruct a jury on provocation negating willfulness,
premeditation and deliberation absent a defense request. (People v. Rogers, supra, 39
Cal.4th at p. 877-879; People v. Mayfield (1997) 14 Cal.4th 668, 778; People v.
Hernandez, supra, 183 Cal.App.4th at p. 1333.) Defendant did not request such
instruction in this case. Defendant contends, however, Mr. Shapiro was prejudicially
ineffective in failing to request the instruction.
Our Supreme Court recently discussed the requisites of an ineffective assistance
claim in People v. Mai (2013) 57 Cal.4th 986, 1009: “A criminal defendant’s federal and
state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15)
includes the right to effective legal assistance. When challenging a conviction on grounds
of ineffective assistance, the defendant must demonstrate counsel’s inadequacy. To
satisfy this burden, the defendant must first show counsel’s performance was deficient, in
that it fell below an objective standard of reasonableness under prevailing professional
norms. Second, the defendant must show resulting prejudice, i.e., a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceeding
would have been different. When examining an ineffective assistance claim, a reviewing
court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel
acted within the wide range of reasonable professional assistance. It is particularly
8
difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a
conviction will be reversed for ineffective assistance only if (1) the record affirmatively
discloses counsel had no rational tactical purpose for the challenged act or omission, (2)
counsel was asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding. (E.g., People v. Vines (2011) 51 Cal.4th 830,
875-876 . . . ; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)”
Defendant cannot establish on direct appeal that Mr. Shapiro’s performance was
deficient. Mr. Shapiro was not asked to explain why he did not request an instruction on
provocation in relation to premeditation and deliberation. Mr. Shapiro may have made a
tactical decision that omitting the instruction was in his client’s interest. Mr. Shapiro
may have thought it would be more confusing than helpful. He may have considered the
instructions given adequate to resolve the premeditation and deliberation issue. He may
have been unaware that such instruction was applicable. Or he may have relied on the
trial court to properly instruct the jury and failed to notice the omission. On the present
record, it is impossible to tell. (People v. Mendoza Tello, supra, 15 Cal. 4th at pp. 266-
267; People v. Wickersham, supra, 32 Cal.3d at p. 334 [failure to sua sponte instruct on
second degree murder].)
Even if defendant could establish Mr. Shapiro’s performance was deficient, there
was no resulting prejudice. The defense presented evidence defendant was distraught and
depressed after Jesse died. Defendant admitted shooting the three victims. Defendant
said he did not plan to assault them; he fired his weapon only when one of the victims
appeared to reach for a gun. Mr. Shapiro argued to the jury that defendant was unstable
in the aftermath of Jesse’s murder. Mr. Shapiro argued defendant did not plan anything,
but acted out of intense emotion.
The jury was instructed: “The defendant is guilty of first degree murder if the
People have proved that he acted willfully, deliberately, and with premeditation. The
defendant acted willfully if he intended to kill. The defendant acted deliberately if he
carefully weighed the considerations for and against his choice and, knowing the
9
consequences, decided to kill. The defendant acted with premeditation if he decided to
kill before completing the acts that caused death. [¶] The length of time the person
spends considering whether to kill does not alone determine whether the killing is
deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A
decision to kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be
reached quickly. The test is the extent of the reflection, not the length of time.” (Italics
added.)
These instructions required the jury to consider defendant’s mental state. No
doubt, the jury could conclude defendant was distraught, unstable, and overcome with
emotion causing him to act rashly and impulsively when he shot the three victims. Under
these circumstances, the jury would not have found deliberation and premeditation. The
jurors would not have found defendant had carefully considered his choices and knowing
the consequences of his actions had decided to kill rival gang members. Instead, they
would have concluded he did not act deliberately or with premeditation. But the jury,
after considering defendant’s mental state as instructed, found he acted willfully,
deliberately and with premeditation. Given the evidence, argument and jury instruction
in this case, the jury was fully informed it should consider defendant’s mental and
emotional state. Nothing in the omitted provocation instruction would have further aided
the jury in that endeavor. It is not reasonably probable the jury would have found
defendant guilty of second instead of first degree murder had the provocation instruction
been given. (See People v. Avila, supra, 46 Cal.4th at pp. 707-708; People v. Fitzpatrick,
supra, 2 Cal.App.4th at pp. 1293-1296.)
B. Gang Enhancement: Sufficiency Of The Evidence
Section 186.22, subdivision (b)(1)(C), enhances an accused’s sentence by 10 years
for a violent felony committed to benefit a criminal street gang. The gang enhancement
10
under section 186.22, subdivision (b)(1), has two elements. First, the underlying crime
must be “committed for the benefit of, at the direction of, or in association with” a
criminal street gang. Second, the crime must be committed “with the specific intent to
promote, further, or assist in any criminal conduct” by gang members. (§ 186.22, subd.
(b)(1); People v. Albillar (2010) 51 Cal.4th 47, 67; People v. Mejia (2012) 211
Cal.App.4th 586, 613.) The jury found the gang enhancement allegations true as to all
three of defendant’s crimes. Defendant argues there was insufficient evidence to support
those findings. Defendant asserts: “[N]o substantial evidence was presented suggesting
the shooting at [the park] was motivated by any consideration other than [defendant’s]
grief over the murder of his brother.” We disagree.
Our Supreme Court set forth the applicable standard of review in People v.
Albillar, supra, 51 Cal.4th at pages 59-60: “In considering a challenge to the sufficiency
of the evidence to support an enhancement, we review the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. (People v. Wilson (2008)
44 Cal.4th 758, 806.) We presume every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence. (Ibid.) If the circumstances
reasonably justify the trier of fact's findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) ‘A reviewing court neither
reweighs evidence nor reevaluates a witness's credibility.’ (Ibid.)” Moreover, [reversal
on the ground of insufficiency of the evidence] is unwarranted unless it appears “‘that
upon no hypothesis whatever is there sufficient substantial evidence to support [the jury's
finding].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
It is true that not every crime committed by a gang member is gang related.
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1138; People v. Albillar, supra, 51 Cal.4th
at p. 60.) Mere membership in a gang does not support imposition of the gang
enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 623-624; In re Frank S.
11
(2006) 141 Cal.App.4th 1192, 1196.) Rather, as the Court of Appeal for the First
Appellate District, Division One, observed in People v. Martinez (2004) 116 Cal.App.4th
753, 761, “The crime itself must have some connection with the activities of a gang . . . .”
(Accord, In re Frank S., supra, 141 Cal.App.4th at p. 1199.)
Opinion testimony concerning gang culture and habits is admissible in support of a
gang enhancement allegation and may be relied on by the trier of fact. (People v.
Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Gardeley, supra, 14 Cal.4th at
p. 617.) A properly qualified witness may testify about the meaning of gang tattoos.
(People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on another point as noted in
People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; People v. Hawthorne (1992) 4
Cal.4th 43, 53.) In addition, a properly qualified witness may testify in response to
hypothetical questions based on the facts of the case whether, in his or her opinion, a
crime as described was gang related. (People v. Vang (2011) 52 Cal.4th 1038, 1045; see
People v. Spence (2012) 212 Cal.App.4th 478, 508-509.)
There was substantial evidence from which the jury could find defendant
committed the present crimes for the benefit of his gang. Defendant was a loyal gang
member. He had multiple gang tattoos on his head as well as other parts of his body. He
believed a rival gang, to which at least two of the victims belonged, was responsible for
Jesse’s death. Defendant’s gang and the victims’ gang were long-time rivals. On the day
after Jesse was killed, defendant got a new tattoo on his face. The new tattoo signified he
was an enemy of the rival gang who wanted to harm or kill members of that gang.
Defendant did not go in search of the person who shot Jesse. Defendant did not go after
one of the gunman’s fellow gang members from the Hollywood area where Jesse was
shot. Instead, defendant, armed with a loaded weapon, went to a park in South Central
Los Angeles. The park was known to be frequented by members of the rival gang.
Defendant walked up to rival gang members, one of whom had conspicuous gang tattoos.
He made a statement disrespecting the rival gang, then opened fire on the victims.
Detective Bourbois testified that maintaining a gang’s respect is critical to a gang’s
continued existence. Retaliating for a shooting by a rival gang is one important way to
12
maintain a gang’s respect. Especially when a small gang like defendant’s is attacked by a
rival, the gang must retaliate or lose respect. In Detective Bourbois’s opinion, the crime,
as hypothetically described, was committed to benefit defendant’s gang. This was
substantial evidence supporting the jury’s gang enhancement findings. Defendant also
argues double jeopardy principles preclude a retrial on the gang enhancements. Because
we find substantial evidence supported the enhancements, there is no potential for a
retrial, and we need not consider defendant’s double jeopardy argument.
C. The Firearm Use Enhancement
Defendant argues imposing a section 12022.53, subdivision (d) firearm use
enhancement on a defendant convicted of murder violates California’s multiple
conviction rule and constitutional double jeopardy principles. Defendant further urges
that recent decisions of the United States Supreme Court suggest double jeopardy
principles should be applied in a single unitary trial. Defendant concedes the California
Supreme Court has rejected his position. (People v. Sloan (2007) 42 Cal.4th 110, 115-
125; People v. Izaguirre (2007) 42 Cal.4th 126, 130-134.) Defendant asserts, “[B]oth
Sloan and Izaguirre are flawed and clearly misapply . . . United States Supreme Court
precedents.” Absent controlling United States Supreme Court authority, we are, of
course, bound by the decisions of the California Supreme Court. (People v. Letner
(2010) 50 Cal.4th 99, 197-198; Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) Therefore, we must reject defendant’s contentions.
D. Sentencing
There are several jurisdictional sentencing modifications that must be made. First,
the trial court imposed a 25-years-to-life sentence under section 12022.53, subdivision
(d) for firearm use. The trial court should also have imposed and then stayed consecutive
10 and 20 year sentences under section 12022.53, subdivisions (b) and (c) respectively.
13
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1122-1123, 1130; People v. Warner (2008)
166 Cal.App.4th 653, 659.) The judgment must be modified as to all three counts and the
abstract of judgment amended to so provide.
Second, the trial court stayed the sentences on two prior separate prison term
enhancements found true under section 667.5, subdivision (b). The trial court was
required to either impose or strike the enhancements as to each indeterminate count.
(People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Garcia (2008) 167
Cal.App.4th 1550, 1561-1562.) Upon remittitur issuance, the trial court must either
impose or strike the prior separate prison term enhancements.
Third, the trial court purported to stay the gang findings. There is no authority to
stay a gang finding under these circumstances. As to count 1, the gang finding created a
50-year minimum parole eligibility date because of defendant’s prior attempted second
degree robbery conviction. As to counts 2 and 3, the gang finding created a 30-year
minimum term as to each count because of defendant’s prior attempted second degree
robbery conviction. (People v. Jefferson (1999) 21 Cal.4th 86, 90; People v. Mendoza
(2000) 78 Cal.App.4th 918, 929.) No gang enhancement was imposed as to any count
because defendant was convicted of a felony punishable by imprisonment for life.
Rather, the gang finding created minimum eligibility parole dates. (§ 186.22, subd.
(b)(1), (5); People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.) Thus, the oral
pronouncement of judgment is modified to set aside the order staying the gang finding.
Fourth, the trial court orally imposed a single $40 court operations assessment
under section 1465.8, subdivision (a)(1). The trial court should have imposed the
assessment as to each count for a total of $120. (People v. Sencion (2012) 211
Cal.App.4th 480, 484-485; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-868; see
People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.) The judgment must be modified to
so provide. The abstract of judgment is correct in this regard and need not be amended.
Fifth, defendant received credit for 445 days in presentence custody. However,
because he was arrested on October 10, 2011, and sentenced on January 8, 2013,
14
defendant was entitled to credit for 457 days in presentence custody. The judgment must
be modified and the abstract of judgment amended to so provide.
Sixth, the abstract of judgment must be amended to correctly set forth the terms
imposed on all counts. At present, the abstract of judgment incorrectly states defendant
received a sentence of 25 years to life on count 1. In fact, defendant received a sentence
of 75 years to life after the doubling of the term for first degree murder. As to counts 2
and 3, the abstract of judgment incorrectly states defendant received a sentence of 15
years to life. In fact, defendant received as to both counts 2 and 3 sentences of 55 years
to life after the minimum term resulting from the gang finding was doubled. (As noted
above, the order staying the gang enhancement must be reversed.) The trial court is to
personally ensure the abstract of judgment is amended to properly reflect the judgment,
including all of the modifications discussed above. (People v. Acosta (2002) 29 Cal.4th
105, 109, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
IV. DISPOSITION
The judgment must be modified to: impose and then stay consecutive 10 and 20
year sentences under Penal Code section 12022.53, subdivisions (b) and (c); provide that
defendant is subject to a 30-year parole eligibility term pursuant to Penal Code section
186.22, subdivision (b)(5) as to counts 2 and 3 in addition to the firearm use
enhancement; impose a $40 court operations assessment under Penal Code section
1465.8, subdivision (a)(1) as to each count; and award defendant credit for 457 days in
presentence custody. In all other respects, the judgment is affirmed. Upon remittitur
issuance: the trial court must either impose or strike the prior separate prison term
enhancements under Penal Code section 667.5, subdivision (b); the abstract of judgment
must be corrected to correctly reflect the 75 years to life sentence on count 1 and the 55
years to life sentences on counts 2 and 3; and the superior court clerk must prepare an
amended abstract of judgment and deliver a copy to the Department of Corrections and
15
Rehabilitation. Because of the complexity of the sentences, the trial court is to personally
supervise the preparation of the amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
MOSK, J.
KUMAR, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
16