People v. Lacroix CA2/5

Filed 8/18/21 P. v. Lacroix CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304354
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA102302)
v.
JEREMIAH LACROIX,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Charlaine F. Olmedo, Judge. Affirmed as
modified with directions.
Patricia A. Scott, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle and
Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Jeremiah Lacroix appeals from
his conviction of murder and other offenses, raising two
sentencing issues. The prosecution concedes the errors, and
contends the court miscalculated the mandatory fees. We agree
with defendant’s claims of error, modify the judgment, and
otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After exchanging words with members of another gang at a
bar, defendant left the bar and returned with a gun. Hostilities
were re-engaged, and defendant shot three people, one of them
fatally.
Defendant was convicted, after a jury trial, of one count
each of: (1) second-degree murder (Pen. Code, § 187);1 (2)
attempted voluntary manslaughter (§§ 664/192, subd. (a)); (3)
assault with a semiautomatic firearm (§ 245, subd. (b)); and (4)
possession of a firearm by a felon (§ 29800, subd. (a)(1)). A
number of gang (§ 186.22, subd. (b)), firearm (§§ 12022.5,
12022.53), and great bodily injury (§ 12022.7) enhancements
were also found true.
Defendant received an indeterminate term of 15 years to
life for the murder, plus 25 years to life for the firearm
enhancement, plus an additional 10 years for the gang
enhancement. He received a determinate term for the remaining
offenses. As it pertains to the present appeal, for felon in
possession, defendant was sentenced to eight months plus one
year for the gang enhancement. Sentences on some
enhancements were imposed and stayed.
1 All further undesignated statutory references are to the
Penal Code.
2
The court also imposed a $30 court operations assessment
(§ 1465.8), a $40 criminal conviction assessment (Gov. Code,
§ 70373), a $300 restitution fine (§ 1202.4) and a $300 suspended
parole revocation fine (§ 1202.45).2 The court stayed the fines
and fees subject to an ability to pay hearing, if requested.
Defendant filed a timely notice of appeal.
DISCUSSION
1. The Gang Enhancement on the Murder Count Must be
Stricken
Section 186.22 provides various gang enhancements,
depending on the offense to which the enhancement applies. If
the offense is a violent felony, the defendant shall be punished by
an additional 10 years in prison. (§ 186.22, subd. (b)(1)(C).)
However, if the offense is punishable by imprisonment for life,
the formulation differs – the defendant “shall not be paroled until
a minimum of 15 calendar years have been served.” (§ 186.22,
subd. (b)(5).) A violent felony punishable by imprisonment for life
falls under subdivision (b)(5) (the 15-year minimum parole
eligibility) not subdivision (b)(1)(C) (the 10-year enhancement),
even if the gang enhancement results in no increase to the
defendant’s term. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
Defendant contends, the Attorney General concedes, and
we agree that defendant’s sentence must be modified to strike the
10-year gang enhancement on his murder conviction, and replace
it with a 15-year minimum parole eligibility term. (People v.
Arauz (2012) 210 Cal.App.4th 1394, 1404–1405.)
2 Direct victim restitution of $6,856.44 was ordered at a
subsequent restitution hearing.
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2. The Term for Felon in Possession of a Firearm Must
Be Stayed
Section 654 prohibits multiple punishments for the same
act or omission. Defendant contends this statute requires staying
his sentence for felon in possession of a firearm, as his firearm
possession was not independent of his other offenses. (See People
v. Bradford (1976) 17 Cal.3d 8, 22 [when the evidence shows a
possession only in conjunction with the primary offense,
punishment for the possession is improper]; People v. Mustafaa
(1994) 22 Cal.App.4th 1305, 1312 [same].) Here, as the trial
court recognized at sentencing, defendant left the bar and
returned with a firearm. There was no evidence that he
possessed it except during the shooting. On appeal, the Attorney
General concedes that the sentence for possession of a firearm
must be stayed. We agree.
3. The People Waived Any Error Regarding Fees
Section 1465.8 provides that an assessment of $40 “shall be
imposed on every conviction for a criminal offense” to fund court
operations. Government Code section 70373 likewise provides an
additional assessment of $30 “shall be imposed on every
conviction for a criminal offense” for court facilities funding.
Here, the trial court imposed a single set of assessments,
amounting to $70, rather than assessments for each of the four
convictions, which would amount to $280. In its respondent’s
brief, the prosecution for the first time argues this was error.
Defendant, in reply, argues any error was forfeited by the
prosecution’s failure to raise it at sentencing. A party may raise
for the first time on appeal a purely legal claim that does not
require a factual evaluation. (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153.) Claims related to these assessments
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require a factual evaluation because the fees may not be imposed
if the defendant lacks the ability to pay. (Ibid.; see also People v.
Castellano (2019) 33 Cal.App.5th 485, 488–489.) The prosecution
neither raised this issue at sentencing nor did it pursue the issue
by means of cross-appeal. We therefore consider it waived.
DISPOSITION
The judgment is modified as follows: (1) as to count 1,
murder, the 10-year enhancement under section 186.22,
subdivision (b)(1)(C) is stricken and a 15-year minimum parole
eligibility term imposed; and (2) as to count 13, possession of a
firearm by a felon, the sentence and related enhancement are
stayed pursuant to section 654. The trial court is directed to
prepare a new abstract of judgment reflecting these changes.
The clerk shall forward the new abstract to the Department of
Corrections. As modified, the judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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