Filed 1/27/20 P. v. Granados CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS FERNANDO GRANADOS,

Defendant and Appellant.

G056817

(Super. Ct. No. 17CF1493)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part, and remanded with directions.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

KPC gang member Luis Granados fired ten shots at a member of a rival gang. One shot struck the rival gang member in the leg; Granados then fled the scene in a black Jeep. A few hours later, police officers found the Jeep in the possession of KPC gang member Jose Ambriz. DNA from both Granados and Ambriz was found on open beer cans inside the Jeep. A jury convicted Granados of attempted murder and street terrorism. It also found true the allegation that Granados personally discharged a firearm. The court sentenced Granados to 40 years to life in state prison.

Granados appeals arguing that there was insufficient evidence to convict him of street terrorism. We disagree. Granados also argues that the court did not act with informed discretion when it sentenced him on the Penal Code section 186.22, subdivision (b)(1) enhancement (§ 186.22(b)(1)). We agree and remand the matter to allow the court to exercise its discretion as to the section 186.22(b)(1) enhancement.

FACTS

On the morning of June 3, 2017, Martin Robles, a member of the Logan Street gang, was acting as a lookout (“posting up”) in an alleyway in Santa Ana. Robles told police that he heard someone yell “fuck Logan” and turned to see a man holding a handgun walking towards him. The man fired four shots as Robles ran away. Robles said the man chased him and fired six more shots; one shot hit him in the leg.

A video recording showed Granados exit a black Jeep with a damaged brake light before firing the gun and running back to the Jeep as he fled the scene.

Later that day, a police officer saw a black Jeep with a damaged brake light. When the officer approached the Jeep, Jose Ambriz exited the driver’s seat and ran away. An officer searched the Jeep and found two open beer cans in the front center console and a cellphone on the front passenger seat. DNA was recovered from the beer cans and cellphone. Granados was the major contributor to the DNA on the cellphone and the sole contributor to the DNA on one of the beer cans. Ambriz was the major contributor to the DNA on the second beer can. The Jeep was registered to a female, who was believed to be Ambriz’s mother.

The jury convicted Granados of attempted murder with three enhancements under Penal Code sections 664, subdivision (a), 186.22, subdivision (b)(1), and 12022.53, subdivision (d), and street terrorism. During the sentencing hearing the court said: “So, sentencing on Count 1 is mandatory according to those enhancements. The 664(a) increases the sentence on Count 1 to a life term. The 186.22(b)(1) increases it to 15 to life. So the sentence on Count 1 would be 15 to life, according to those – – Count 1 and both enhancements. So the sentence on Count 1 is 15 to life. [¶] Then we have the enhancement for the 12022.53(d), which is a mandatory consecutive enhancement. Since that was found to be true, I’ll add that enhancement of 25 to life, which makes the total term 35 or – – or, I’m sorry, 40 to life at that point. [¶] Count 2, I will impose the upper term of three years concurrent and stay that term, stay that sentence pursuant to 654. [¶] So the total sentence is 40 to life.” The prosecutor indicated that the court had discretion to strike the 12022.53(d) enhancement; the court declined to exercise its discretion.

DISCUSSION

1. The Sufficiency of the Evidence

Granados argues that there was insufficient evidence to convict him of street terrorism (Pen. Code, § 186.22(a)) because the evidence did not establish that Ambriz was driving the Jeep at the time of the shooting. We disagree.

“In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.)

Granados argues that the evidence was insufficient to prove beyond a reasonable doubt that Ambriz was driving the Jeep at the time of the shooting, citing People v. Morris (1988) 46 Cal.3d 1, 20-21 (Morris) (disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5). However, the instant case is distinct from Morris. In Morris, the California Supreme Court determined there was insufficient evidence to support a conviction for a robbery-murder special allegation because the evidence established only that the defendant shot the victim and was in possession of the victim’s property after the shooting. (Morris, at pp. 20-21.) The court noted that because the evidence failed to establish when the property was taken, the jury could only speculate as to whether a robbery had occurred. (Id. at p. 21.) The court concluded that the evidence was insufficient to support a reasonable inference that the killing occurred during the commission of a robbery. (Ibid.)

The record in this case, on the other hand, contains substantial evidence to support the inference that Ambriz was the driver during the shooting. There was testimony that two men were involved in the shooting. The two men fled the scene in a Jeep with a damaged brake light. Two hours later, the police found Ambriz in the driver’s seat of a black Jeep, which they believed was owned by Ambriz’s mother. That jeep had a damaged brake light. Two open beer cans were found in the Jeep. Granados’s DNA was found on one can and Ambriz’s DNA was found on the other. From this circumstantial evidence, the jury could reasonably infer that Ambriz was driving the Jeep at the time of the shooting. There was substantial evidence to support the conviction on this count.

2. The Sentence on Count 1

When sentencing Granados on count 1, the court imposed consecutive time for three enhancements, including a 186.22(b)(1) enhancement. In doing so, the court stated that the additional time was “mandatory according to those enhancements.” Granados argues that the sentence was improper because section 186.22, subdivision (g), gives the court discretion to strike a section 186.22(b)(1) enhancement. We agree. Section 186.22, subdivision (g), allows the court to “strike the additional punishment for the enhancements provided in this section . . . where the interests of justice would best be served.” (Pen. Code, § 186.22, subd. (g).)

The Attorney General agrees that the court had discretion to strike the section 186.22(b)(1) enhancement and that it is unclear whether the court would have struck the enhancement had it understood the scope of its discretion. Nonetheless, the Attorney General argues Granados forfeited this claim by failing to object at sentencing, citing People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).

In Scott, the defendant argued that he had been illegally sentenced because the trial court had used improper factors to support an aggravated term. (Scott, supra, 9 Cal.4th at p. 355.) The defendant’s counsel did not object during sentencing. (Id. at p. 340.) The California Supreme Court affirmed the sentence, finding that issues “involving the trial court’s failure to properly make or articulate its discretionary sentencing choices” were forfeited if they were not objected to in the trial court. (Id. at p. 353.) “Our reasoning is practical and straightforward. Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” (Ibid.)

But Granados is not challenging a discretionary decision made by the trial court. Granados is challenging the court’s mistaken determination that it had no discretion regarding the section 186.22(b)(1) enhancement. When such a misunderstanding forms the basis for a sentencing decision, the matter must be remanded. (People v. Downey (2000) 82 Cal.App.4th 899, 912 (Downey).)

In Downey, the trial court sentenced the defendant to consecutive terms on felony and misdemeanor charges. When it pronounced the sentence, the court stated the law required that the felony term be served consecutively to the misdemeanor term. (Downey, supra, 82 Cal.App.4th at p. 912.) The Court of Appeal remanded the matter, since the law did not require a consecutive sentence: “‘[A] ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law.”’ (Ibid.) “Where, as here, a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination.” (Ibid.)

In this case, the trial court stated that consecutive time was mandated by law. Because the law does not impose this requirement, the trial court’s ruling must be reversed and the matter remanded to allow the court to exercise its discretion regarding the section 186.22(b)(1) enhancement.

DISPOSITION

We affirm the conviction on count 1. We reverse the sentence related to the section 186.22(b)(1) enhancement and remand the matter to the trial court to allow it to exercise its sentencing discretion.

GOETHALS, J.

WE CONCUR:

MOORE, ACTING P. J.

IKOLA, J.