People v. Viramontes CA2/6

Filed 10/8/13 P. v. Viramontes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245414 (Super. Ct. No. KA096547-01) Plaintiff and Respondent, (Los Angeles County)

v.

FRANK A. VIRAMONTES,

Defendant and Appellant.

Frank A. Viramontes appeals a judgment following conviction of robbery. (Pen. Code, § 211.)1 The jury found that he committed the crime to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) Viramontes admitted he suffered a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced Viramontes to 13 years in state prison, consisting of three years for the robbery and 10 years for the gang enhancement. (§§ 211, 186.22, subd. (b)(1)(C).) The court stayed a one-year prior prison term enhancement. We remand to the trial court to correct the sentence by either imposing or striking the one-year prior prison term enhancement, and otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND Viramontes, Jacob Verdona, Albert Silvas, and Lydia Padilla are members of the Ford Maravilla street gang. Verdona kept a gun for Viramontes, according to the

1 All statutory references are to the Penal Code unless otherwise stated.

testimony of Verdona's girlfriend, Nasreen Garcia. Verdona kept it hidden under his grandmother's house. Verdona and Garcia discovered the gun was missing. They suspected that Cheryl Mack and her boyfriend had taken it. Garcia told Viramontes that Mack had taken the gun. Viramontes told her he wanted it back and he asked Garcia to take him to Mack's house. Garcia drove, with Verdona in her car. Viramontes followed in another car with Silvas and Padilla. Silvas and Padilla forced their way into Mack's house, tied up Mack's mother, and took a number of valuable objects. Viramontes waited outside and watched for police. After the robbery, Garcia drove Viramontes away. She pled no contest to being an accessory to the robbery after the fact. In a recorded interview, Viramontes admitted that he stood by the door and watched for police during the robbery and that he carried a jewelry box to the car. He also admitted he was a member of Ford Maravilla. Los Angeles Police Detective Jesse Lucero testified as a gang expert. He offered the opinion that the robbery was committed in association with, for the benefit of, and at the direction of the Ford Maravilla criminal street gang. He testified that Ford Maravilla's primary activities are vandalism, robbery, attempted robbery, extortion, carjacking, assault, vehicle theft, narcotic sales and transportation, attempted murder, and murder. He testified to predicate felonies by gang members, about which the prosecution presented documentary evidence. He testified that Viramontes, Silvas, and Padilla were members of Ford Maravilla. Lucero had been assigned to East Los Angeles gangs, including Ford Maravilla, since 1990, and had been assigned primarily to Ford Maravilla for the past two years. The investigating officer, Detective Scott Strong, also testified that he knew Silvas to be a member of Ford Maravilla.