APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed in part, reversed in part, remanded with directions. (Los Angeles County Super. Ct. Nos. NA076498, NA076735)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Following a jury trial, John Sok was convicted of two counts of attempted murder with related firearm-use and criminal street gang enhancements, as well as one count of shooting at an occupied motor vehicle and multiple counts of unlawful firearm and ammunition possession. He was sentenced as a second strike offender, based on a prior juvenile adjudication, to an aggregate state prison term of 84 years to life. On appeal Sok does not challenge his convictions but raises a number of objections to the calculation of his sentence. As Sok contends, a number of sentencing errors were made.*fn1 Several of Sok's claims have merit. Accordingly, we remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The charges against Sok, an admitted member of the Asian Boyz criminal street gang, arose from two separate shootings. On October 26, 2007, after asking Fernando Vega where he was from, Sok fired several shots into Vega's car, wounding a passenger, Jose Rocha, in the hand and leg. Also in the car with Vega and Rocha were Josue Jacobo and Alfred Lopez, neither of whom was hit by the gunfire. On November 17, 2007 shots were fired at a residence during a party. Police responding to the incident were told Sok had a gun. A search of Sok's car uncovered a loaded nine-millimeter Glock pistol inside the trunk. According to a criminalist, based on bullet casings recovered from each of the crime scenes, the bullets fired in both incidents came from the nine- millimeter Glock pistol found in Sok's car.
Based on the first incident, Sok was charged with four counts of attempted willful deliberate and premeditated murder (count 3, Jose Rocha; count 4, Fernando Vega; count 5, Josue Jacobo; and count 6, Alfredo Lopez) (Pen. Code, §§ 664, 187, subd. (a))*fn2 ; one count of unlawful possession of a firearm in violation of section 12021, subdivision (e) (count 7); one count of unlawful possession of ammunition (count 8) (§ 12316, subd. (b)(1)); and one count of shooting at an occupied motor vehicle (count 9) (§ 246). Based on the second incident, Sok was charged with one additional count of unlawful possession of a firearm and one count of unlawful possession of ammunition.
An amended information specially alleged each of the crimes had been committed to benefit a criminal street gang*fn3 and, as to counts 3, 4, 5, 6 and 9, specially alleged firearm-use enhancements under section 12022.53, including under section 12022.53, subdivision (d), for the attempted murder of Rocha and shooting at an occupied vehicle. It was also specially alleged Sok was subject to sentencing under the "Three Strikes" law for having suffered one prior juvenile adjudication (assault with a deadly weapon) (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In a bifurcated proceeding before trial, Sok admitted he had suffered a prior juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of the Three Strikes law, and for purposes of the two counts alleging unlawful possession of a firearm by a person previously adjudged a ward of the juvenile court for committing one of a series of specified offenses (§ 12021, subd. (e)).
The jury convicted Sok of the attempted murders of Rocha and Vega, shooting at an occupied vehicle and the unlawful possession counts, but was unable to reach a verdict on the charges of attempted murder of Jacobo and Lopez. (Those counts were later dismissed on the People's motion.) Due to a clerical error in the verdict form, the jury made no findings as to premeditation with respect to the attempted murders of Rocha and Vega. The People elected not to pursue those allegations, and the defense waived any defect in the verdict form.
The jury also found true the firearm-use and criminal street gang enhancements alleged with respect to the two attempted murder counts on which it returned guilty verdicts and for shooting at an occupied vehicle. In addition, the jury found true the criminal street gang allegations with respect to the unlawful possession counts for the November 17, 2007 shooting incident, but not the October 26, 2007 incident.
The trial court sentenced Sok to an aggregate state prison term of 84 years to life. Count 3, the attempted murder of Rocha, was identified as the principal term. The court selected the middle term of seven years, plus 10 years for the criminal street gang enhancement (§ 186.22, subd. (b)(1)(C)), plus an additional 25 years to life as the enhancement for discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)). The court then doubled the entire sentence (including the enhancements) under the Three Strikes law. The court imposed a concurrent sentence for the attempted murder of Vega, count 4, consisting of the middle term of seven years plus 20 years for personally discharging a firearm. The court stayed imposition of sentence on count 9, shooting at an occupied vehicle, pursuant to section 654, but identified the sentence as the middle term of five years, plus 10 years for the criminal street gang enhancement, plus 25 years to life as the enhancement for discharging a firearm causing great bodily ...