People v. Matters CA2/1

Filed 7/24/14 P. v. Matters CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B252113

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA078803) v.

BOBBY MATTERS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael D. Carter, Judge. Affirmed with directions. Catherine White, 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, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, and Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent. ——————————

Count 4 of a third amended information charged appellant Bobby Matters with dissuading a witness by force or threat. (Pen. Code,1 § 136.1, subd. (c)(1).) Counts 5 and 6 jointly charged Matters and Yun with assault by means likely to produce great bodily injury. (§ 245, subd. (a)(1).2 As to these counts the operative information alleged that Yun and Matters personally inflicted great bodily injury on the victims. (§ 12022.7, subd. (a).) It also alleged that the offenses were gang related. (§ 186.22, subds. (b)(1)(B), (b)(1)(C), (b)(4).) Matters pleaded not guilty and denied the special allegations. As relevant here, a jury convicted Matters of witness intimidation, and found the gang allegation true. As to counts 5 and 6, the jury convicted Matters of the lesser offense of misdemeanor assault, and found true the gang allegations. The trial court sentenced Matters to eight years eight months. Matters appealed and, in an unpublished decision, People v. Yun (Apr. 25, 2013, B235694) [nonpub. opn.], we found that, as to count 4, Matters received an unauthorized sentence and remanded for resentencing. (Id. at pp. 19–24, 39.) On remand, the trial court resentenced Matters to the low term of 16 months on count four, plus five years for the gang enhancement. As to counts 5 and 6, the court imposed eight months (one-third the midterm of two years) as to each count. The total term imposed was seven years four months. This appeal followed. DISCUSSION3 1. Section 186.22, subdivision (d) applies to misdemeanors. Matters contends that section 186.22, subdivision (d) may not be used to enhance the penalty for his underlying misdemeanor offense because the language of the statute