APPEAL from the judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed in part, reversed in part, and remanded. (Los Angeles County Super. Ct. No. KA080534).
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Jose Ortiz and Armando Gonzalez appeal from a judgment after a jury convicted them of attempted murder and assault with a semiautomatic firearm and found true various enhancements. We affirm in part, reverse in part, and remand, directing the trial court (1) to modify the portion of the judgment imposing a 15-year minimum parole eligibility date on Ortiz's sentence and (2) to reinstate and stay firearm enhancements which the court dismissed as to both appellants.
FACTS AND PROCEDURAL HISTORY
At approximately 10:45 p.m., on September 7, 2007, appellants Jose Ortiz and Armando Gonzalez drove down the 1600 block of Berkeley Avenue in Pomona, California, with friend Miguel D., and known "Cherryville" gang member Omar Valencia. The victim, Hector E., was out on the sidewalk in front of his apartment complex watching fireworks.
As the vehicle approached Hector and his friends, appellants told the driver, Miguel, to stop the car. Appellants got out of the car and walked quickly toward Hector. Ortiz was holding a gun by his side, pointed downward. When they were approximately 12 feet from Hector, appellants stopped and asked him where he was from, meaning what gang are you from. Hector, who was not a gang member, replied, "Nowhere. I don't gang bang." Appellants then repeatedly shouted that they were from "Cherryville," a known criminal street gang.*fn2
After the initial confrontation, appellants turned and walked back toward the car. As they neared the vehicle, appellants turned around. Multiple shots were fired at Hector, hitting him twice in his right leg. At trial both Hector and another witness testified appellant Ortiz was the shooter; however, in an interview with police on September 13, 2007, driver Miguel identified appellant Gonzalez as the shooter.*fn3 After the shooting, appellants got back in the car and drove away. Neither appellant spoke as they walked toward the car or as the shooting took place.
A few days after the incident, Gonzalez's girlfriend, Zaira F., told Detective Freeman that Gonzalez had confessed to the shooting. Zaira said Gonzalez told her the victim said something to him which caused the shooting; he did not say exactly what was said. Zaira told Detective Freeman, "I guess he told him something bad words, or like something. I don't know." Both Hector and another witness testified that nothing was said as appellants walked back to the car.
Following a jury trial, Ortiz was convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a))*fn4 and assault with a semiautomatic firearm (§ 245, subd. (b)). The jury found the attempted murder was willful, deliberate, and premeditated; the crime was committed for the benefit of or in association with a criminal street gang; and a principal personally and intentionally discharged a handgun causing great bodily injury. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1).) The court sentenced Ortiz to state prison for life with possibility of parole for attempted premeditated murder and set a 15-year minimum parole eligibility pursuant to section 186.22, subdivision (b)(5). The court also imposed an additional term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1) and ordered it to run consecutively to the first life term.
Gonzalez was convicted of attempted nonpremeditated murder (§§ 664, 187, subd. (a)) and assault with a semiautomatic firearm. (§ 245, subd. (b).) The jury found true gang and firearm allegations. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d) & (e)(1).) Gonzalez was sentenced to 32 years in state prison. The court imposed the midterm of seven years for attempted murder, plus 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1).
There was no finding that either defendant personally used a firearm.
1.Sufficient Evidence Supports the Jury's Finding of Attempted Willful, Deliberate, and ...