The People v. Aguilar CA2/6

Filed 9/18/13 P. v. Aguilar CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B244041 (Super. Ct. No. 2009007662) Plaintiff and Respondent, (Ventura County)

v.

GREGORIO AGUILAR,

Defendant and Appellant.

Gregorio Aguilar appeals from the judgment entered after a jury convicted him of first degree murder with the special circumstance finding that the murder was committed during an attempted robbery (count 1; Pen. Code, §§ 187, subd. (a); 190.2, 1 subd. (a)(17)(A)) , attempted second degree robbery (count 2; 664/211), second degree robbery (count 3; § 211), and attempted second degree robbery (count 4; §§ 664/211). The jury found that appellant personally and intentionally discharged a firearm causing death in counts 1 and 2 (§ 12022.53, subd. (d)), and personally used a firearm in counts 3 and 4 (§ 12022.53, subd. (b)). Appellant was sentenced to a determinate term of 17

1 All statutory references are to the Penal Code.

years state prison on counts 3 and 4, and, on count 1, to a consecutive indeterminate term 2 of life without possibility of parole plus 25 years to life on the firearm use enhancement. Appellant contends that his sentence of life without parole for special circumstance first-degree murder, plus 25 years to life on the firearm use enhancement (§12022.53, subd. (d)) violates California's multiple conviction rule and federal double jeopardy principles. We affirm with directions to issue an amended abstract of judgment.

Facts During the early morning hours of December 28, 2008, appellant entered the Circle K Market in Ventura with a masked man, demanded money, and shot and killed the store clerk, Sean Odle, with a .22 caliber rifle. (Counts 1 and 2.) Shortly before midnight on December 11, 2008, appellant robbed Marisela Martinez, a cashier at the Shell Gas Station in Fillmore. Wearing a bandanna, gloves and a beanie, appellant pointed a rifle at Martinez, demanded money, and fled with $300 to $400. (Count 3.) Shortly before midnight on December 12, 2008, appellant attempted to rob Touni Ziab at the Central Liquor and Market in Santa Paula with a rifle. (Count 4.) Wearing a bandanna and dark hooded sweatshirt, appellant confronted Ziab and said “Give me all the fucking money. I ain’t playing around with you." Appellant fled after Ziab called out for his brother-in-law to get a gun and call 911. (Count 4). In 2009, appellant told a police informant, Adam Solorio, that "I killed my first man" and that he committed the Ventura, Fillmore and Santa Paula crimes.