People v. Jones-Carnes CA3

Filed 3/6/23 P. v. Jones-Carnes CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095850
Plaintiff and Respondent, (Super. Ct. No. 19FE000142)
v.
DAVONNTAY ORYAN JONES-CARNES,
Defendant and Appellant.
A jury found defendant Davonntay Oryan Jones-Carnes guilty of attempted
murder and found true various gun enhancements. It also found defendant guilty of
assault with a semiautomatic firearm and found true a great bodily injury enhancement
and a personal use of a firearm enhancement. Finally, the jury found defendant guilty of
concealed possession of a firearm and driving a vehicle valued at more than $950 without
consent of the owner. The trial court sentenced defendant to seven years to life for the
attempted murder conviction, plus 10 years for the associated gun enhancements; it
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sentenced him to two years eight months for the remaining convictions carrying unstayed
sentences. The trial court did not impose a sentence for the assault with a semiautomatic
firearm conviction and associated enhancements. Defendant appeals, challenging the
imposition of a sentence under the gun enhancements and requesting the abstract of
judgment be corrected. The matter is remanded for resentencing and the judgment is
otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2018, defendant shot Anthony D. in a grocery store parking lot.
The altercation started when defendant dropped some coins on the ground in the store and
a group of Anthony’s friends laughed at defendant. Upon leaving the store, defendant got
in his car and drove to Anthony’s group, which was standing near Anthony’s friend’s car.
Defendant got out of his car and fired six rounds from his gun at the group, two of which
hit Anthony. One of these bullets left Anthony paralyzed from the waist down. Later, it
was discovered that the car defendant was driving had been stolen and the gun defendant
used had also been stolen.
Defendant was charged with attempted murder with alleged gun enhancements
under Penal Code1 sections 12022.5, subdivision (a) and 12022.53, subdivisions (b), (c),
and (d); assault with a semiautomatic firearm with alleged great bodily injury and
personal use of a firearm enhancements; concealed possession of a firearm; and driving a
vehicle valued at more than $950 without consent of the owner. The jury found
defendant guilty of all offenses and found all enhancements true. Defendant filed a
motion to dismiss all enhancements, and the trial court granted the motion as to the
enhancements under section 12022.53, subdivisions (c) and (d). The motion was denied
1 Further undesignated section references are to the Penal Code.
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as to the great bodily injury enhancement and the enhancements under sections 12022.5,
subdivision (a) and 12022.53, subdivision (b).
The court imposed seven years to life for the attempted murder conviction, 10
years for the gun enhancements attached to that conviction, two years for the possession
of a concealed weapon conviction, and eight months for the unlawful driving of a vehicle
conviction. The trial court stayed the sentence for the assault with a deadly weapon
conviction and associated enhancements without imposing a term of years, citing section
654. The court appeared to impose sentence on the gun enhancements concurrently
pursuant to sections 12022.5, subdivision (a) and 12022.53, subdivision (b) because it
selected 10 years under both sections without staying imposition of either sentence.
Defendant appeals.
DISCUSSION
I
Defendant Is Not Entitled To A Reduced
Sentence On The Gun Enhancement Attached To Count One
Defendant argues his gun enhancement sentence should be reduced to four years
because it appears the trial court sentenced him under the 12022.53 enhancement and it
did not comply with newly enacted sentencing laws when imposing the upper term for
the 12022.5 enhancement. We disagree.
As a factual matter, we note that the trial court did not strike the gun enhancement
found true pursuant to section 12022.53, subdivision (b). Defendant does not argue that
the trial court’s decision not to strike that subdivision’s enhancement was an abuse of
discretion. Thus, the trial court properly imposed 10 years pursuant to section 12022.53,
subdivision (b), as that is the only term available under that subdivision.
Given the imposition of a sentence under section 12022.53, subdivision (b), the
trial court should have stayed the sentence under section 12022.5, subdivision (a) because
a firearm enhancement specified in section 12022.5 may not be imposed in addition to an
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enhancement imposed under section 12022.53. (§ 12022.53, subd. (f); People v.
Gonzalez (2008) 43 Cal.4th 1118, 1129-1130; People v. Warner (2008) 166 Cal.App.4th
653, 659.) Even if stayed, however, the trial court must select a term pursuant to section
12022.5, subdivision (a). Section 12022.5, subdivision (a) imposes a sentence of either
three, four, or 10 years.
Defendant argues the trial court improperly chose the upper term sentence under
section 12022.5, subdivision (a) rather than the midterm sentence; however, we do not
address the issue of term choice here. As discussed post, the matter must be remanded
for resentencing, at which point defendant can raise this objection. (See People v.
Ramirez (2019) 35 Cal.App.5th 55, 64 [when a case is remanded for resentencing, the
trial court is given jurisdiction to modify any aspect of a defendant’s sentence].)
II
Remand Is Required
The parties note, but do not argue error, that the trial court did not impose a
sentence for the assault with a deadly weapon conviction and associated enhancements
before staying the sentence. When the trial court stayed the sentence for the assault
conviction and attached enhancements, the court cited to section 654, which prohibits the
imposition of more than one punishment for an act or omission which is made punishable
in different ways by different statutory provisions. (§ 654, subd. (a).) “[W]hen a court
determines that a conviction falls within the meaning of section 654, it is necessary to
impose sentence but to stay the execution of the duplicative sentence.” (People v. Duff
(2010) 50 Cal.4th 787, 796, italics omitted.) Failure to follow this procedure results in an
unauthorized sentence. (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) We must
remand for the trial court to impose a sentence here because we cannot say what sentence
the trial court undoubtedly would have imposed. (See id. at p. 1473 [appellate court
imposed a midterm sentence because the trial court imposed a midterm sentence on the
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nonstayed count involving the same conduct]; People v. Lawley (2002) 27 Cal.4th 102,
172.)
Accordingly, we shall remand the matter to the trial court for resentencing so that
the court may select a sentence to impose for the assault with a deadly weapon conviction
and attached enhancements, impose that sentence, and then stay execution of either the
sentence on the assault with a deadly weapon conviction or the sentence on the attempted
murder conviction. We note section 654 has recently been amended by Assembly Bill
No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1). Current section 654 allows
the trial court to select in its discretion which term among those falling under its
provision to impose. Upon remand, the trial court shall exercise its discretion under the
current version of section 654.
Further, as both parties agreed, the abstract of judgment contains clerical errors.
We need not address this issue because the trial court will prepare a new abstract
following resentencing.
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DISPOSITION
The matter is remanded for resentencing so the trial court may impose a sentence
on the assault with a deadly weapon conviction and associated enhancements (count
two); impose a sentence on the section 12022.5, subdivision (a) gun enhancement (count
one); and exercise its discretion pursuant to section 654. The trial court shall also
entertain any sentencing objections then raised by defendant. The judgment is otherwise
affirmed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
McADAM, J.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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