People v. Benavidez CA2/2

Filed 2/24/14 P. v. Benavidez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B245424

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA082281) v.

EDWARD BENAVIDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. James B. Pierce, Judge. Affirmed as modified.

Carla Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Edward Benavidez of first degree murder (Pen. Code, §187, subd. (a))1 (count 1), attempted willful, deliberate, premeditated murder (§§ 664/187, subd. (a)) (count 2), and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 3). The jury found as to all counts that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C). With respect to count 1, the jury found that defendant personally and intentionally discharged a firearm causing great bodily injury and death within the meaning of section 12022.53, subdivision (d). In count 2, the jury found that defendant personally used a firearm (§ 12022.53, subd. (b)) and that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). Defendant admitted an allegation that he had suffered a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to a total term of 90 years to life. The sentence consisted of 25 years to life for the murder in count 1 plus 25 years to life for the firearm enhancement in that count. In count 2, the court imposed 15 years to life plus an additional 25 years to life for the firearm enhancement in that count. The court stayed the sentence in count 3 pursuant to section 654. The court struck the section 667.5, subdivision (b) enhancement. Defendant appeals on the grounds that: (1) the imposition of a 25-years-to-life sentence for the firearm use enhancement in count 2 violated California law and his right to a jury trial; and (2) the trial court erroneously under-calculated his credit days by 300 days. Respondent contends that the abstract of judgment must be amended to show court security fees of $120 pursuant to section 1465.8, subdivision (a)(1).