People v. Gallegos

Opinion

BUTLER, Acting P. J .

Ramon Barajas Gallegos was convicted by a jury of forcible rape (Pen. Code,

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§ 261, subd. (2)), robbery (§ 211), assault with a firearm (§ 245, subd. (a)(2)), auto theft (Veh. Code, § 10851) and kidnapping for purposes of robbery (§ 209, subd. (b)). The jury found Gallegos personally used a pistol during the commission of all crimes (§ 12022.3, subd. (a) as to the rape, § 12022.5 as to the other crimes) and further found him armed and personally using a dangerous or deadly weapon for the kidnapping for robbery charge (§ 12022, subds. (a) and (b)).

The court sentenced Gallegos to life imprisonment with the possibility of parole for the kidnap for purposes of robbery to be served consecutive to a

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determinate eleven-year term consisting of a six-year midterm for the rape, a three-year enhancement for the pistol use during the rape, and two years for the use of a firearm in the kidnapping for robbery (§ 669). The court imposed the midterms for the robbery and assault with a firearm and ordered them to run concurrent to the other sentence. The accompanying firearm use enhancements were also imposed and ordered to run concurrently. Execution of sentence on the auto theft was stayed under section 654 and the section 12022, subdivisions (a) and (b) enhancements were stayed under section 1170.1, subdivision (e).

Gallegos appeals his conviction claiming prejudicial instructional error and challenges the sentence imposed by the court as a result of his conviction.

I

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IV

Finally, Gallegos contends the trial court had no jurisdiction to include the three-year enhancement for gun use for the rape in the section 669 sentencing scheme. Because section 669 does not specifically mention section 12022.3 as one of the enumerated code sections subject to its application, Gallegos argues the enhancement cannot be included as part of the determinate sentence to be served before his indeterminate life term and his sentence must be modified to allow three years credit to be applied to his parole eligibility. We find Gallegos’ contention without merit.