California Court of Appeal Feb 13, 2014 No. E056964Unpublished
Filed 2/13/14 P. v. Madrigal CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056964
v. (Super.Ct.No. INF066892)
ANTONIO MADRIGAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard A. Erwood,
Judge. Affirmed as modified.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Julianne Karr
Reizen, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant Antonio Madrigal argues that, pursuant to Penal Code section 6541 and
in light of the California Supreme Court’s decision in People v. Mesa (2012) 54 Cal.4th
191 (Mesa), his sentence for active gang participation in a case where he was also
with a firearm (§ 245, subd. (a)(2), count 2); being a felon in possession of a firearm
(§ 12021, subd. (a)(1), count 3); and participation in a street gang (§ 186.22, subd. (a),
count 4).
In addition, the jury found true allegations as to both counts 1 and 2 that defendant
committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)); that
he personally used a firearm (§§ 12033.5, subd. (a) & 1192.7, subd. (c)(8)); and that he
1 All further statutory references are to the Penal Code.
2
personally inflicted great bodily injury on a person not an accomplice (§§ 12022.7, subd.
(a) & 1192.7, subd. (c)(8)). As to count 1, the jury also found that he personally and
intentionally discharged a firearm (§§ 12022.53, subd. (c) & 1192.7, subd. (c)(8)); that he
personally and intentionally discharged a firearm causing great bodily injury to another
person not an accomplice (§§ 12022.53, subd. (d) & 1192.7, subd. (c)(8)); and that he
acted as a principal in association with a street gang with the intent to promote criminal
conduct by street gang members (§ 12022.53, subd. (e)).
In a separate proceeding on April 25, 2012, the court found true special allegations
that defendant had been convicted of a prior “strike” prior (§§ 667, subds. (c), (e)(1) &
1170.12, subd. (c)(1)) for shooting at an inhabited dwelling (§ 246), and that he had not
remained free of prison custody for a period of five years following his release for that
offense. (§ 667.5, subd. (b).)
On June 22, 2012, the court sentenced defendant on count 1 to total of 55 years to
life: 15 years to life, doubled to 30 because of his strike prior, plus a 25 years to life
enhancement for personal use of a firearm causing great bodily injury. On count 3, the
court sentenced defendant to a consecutive determinate term of eight years four months:
three years, doubled to six because of his strike prior, plus 16 months for his street-gang
conviction in count 4 and an additional a one-year enhancement for the strike prior. As
to count 1, the court imposed but stayed pursuant to section 654 the sentences for the
section 12022.5, 12022.7, and 12022.53, subdivision (c) allegations. Similarly, the court
imposed but stayed the sentence and related allegations for count 2.
3
DISCUSSION
Defendant argues on appeal that, under Mesa, supra, 54 Cal.4th 191 his sentence
for active participation in a street gang (§ 186.22, subd. (a), count 4) should have been
stayed pursuant to section 654. He is correct.
In addition to active participation in the gang and knowledge that members of the
gang have engaged in a pattern of criminal activity, a conviction for the crime of street
terrorism defined in section 186.22 requires that the defendant willfully promote, further,
or assist felonious conduct by a member of the gang. (§ 186.22, subd. (a); People v.
Abillar (2010) 51 Cal.4th 47, 56.)
Section 654 provides that “An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) The application of section
654 to section 186.22 means that where a defendant is convicted of the underlying
principal offense, and that offense is used to satisfy the willful-promotion-of-felonious-
conduct element of the crime of street terrorism, he or she cannot be separately punished
for both crimes. (Mesa, supra, 54 Cal.4th at pp. 197-198.)
Here, defendant was convicted in count 1 of the underlying felony of deliberate
premeditated attempted murder and in count 3 of being a felon in possession of a firearm,
and it was those crimes that satisfied the third element of the crime of street terrorism, his
4
conviction in count 4. Accordingly, his sentence for the violation of section 186.22 must
be stayed.
DISPOSITION
Pursuant to section 654, the judgment is modified to stay the 16 month term for
defendant’s conviction for the crime of street terrorism in count 4. As modified, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant's sentence for active gang participation must be stayed under Penal Code section 654 when the underlying felony used to satisfy the gang participation element is also punished.
Issues
Whether a sentence for active gang participation must be stayed pursuant to Penal Code section 654 when the defendant is also convicted of the underlying felony used to satisfy the gang participation element.
Disposition. Affirmed as modified
Quotations verified verbatim against the opinion
“Accordingly, his sentence for the violation of section 186.22 must be stayed.”