APPEAL from a judgment of the Superior Court of Los Angeles County. Laura C. Ellison, Judge. Affirmed in part, reversed in part, and remanded. (Los Angeles County Super. Ct. No. BA334204)
The opinion of the court was delivered by: Ashmann-gerst, J.
CERTIFIED FOR PUBLICATION
A jury convicted Pedro Gonzalez (appellant) of one count of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)*fn1 The jury found true two sentence enhancement allegations: that appellant personally inflicted great bodily injury on a person other than an accomplice in the commission of a felony (§ 12022.7, subd. (a)); and that the assault was a "violent felony" committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).*fn2
The trial court sentenced appellant to a term of 16 years in state prison, calculated as follows: the midterm of three years for the assault count, enhanced by three years for appellant‟s personal infliction of great bodily injury, and further enhanced by 10 years for appellant‟s commission of a violent felony to benefit a criminal street gang. The trial court awarded appellant 208 days of presentence custody credit.
This appeal presents the following question: Does imposition of both the three-year great bodily injury enhancement and the 10-year gang enhancement violate section 1170.1, subdivision (g), which provides in relevant part, "[w]hen two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." Applying the Supreme Court‟s reasoning in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), we conclude that imposition of both enhancements does violate section 1170.1, subdivision (g).*fn3
On December 27, 2007, Armando Secundino (the victim) and his cousin were at a video arcade in Los Angeles. At the arcade, appellant approached the victim and asked the victim where he was from. The victim understood appellant‟s question as a query about the victim‟s gang affiliation, and the victim answered "nowhere." Appellant responded that he was from "18th Street" and walked a few feet away to speak with a companion, later identified at trial as Pedro Solis (Solis). Solis approached the victim, asked the victim where the victim was from, and then declared that he (meaning Solis) was from "18th Street." Around the same time, appellant went to stand behind the victim.
The victim told Solis that he did not care where Solis was from. Solis punched the victim and the two started fighting. Appellant, meanwhile, began hitting and kicking the victim from behind. The victim‟s cousin, who witnessed the brawl, testified that he saw appellant strike the victim more than 10 times. Once the brawl ended, the victim discovered that he had been stabbed and was severely bleeding underneath his right arm. The victim was hospitalized for four days with a collapsed lung. The victim testified that during the entire brawl, his focus was on Solis and at no point did he see Solis stab him.
Officer Adrian Lopez testified as the prosecution‟s gang expert. Officer Lopez testified that appellant was a member of the 18th Street criminal street gang, and that he committed the underlying offense to benefit the gang with the specific intent to further and promote criminal conduct by members of the gang.
Appellant concedes that the jury‟s factual findings qualified him for two sentence enhancements: a three-year great bodily injury enhancement under section 12022.7, subdivision (a), and a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C). Appellant contends, however, that because both enhancements resulted from his infliction of great bodily injury on the same victim in the commission of a single offense, the trial court should have, pursuant to section 1170.1, subdivision (g), imposed only the greatest of those enhancements, i.e., the 10-year gang enhancement. The People agree with appellant‟s contention. We agree as well, and remand the matter for resentencing consistent with this decision.
We begin by reviewing the ...