People v. Mooney CA5

Filed 5/21/15 P. v. Mooney CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F068343 Plaintiff and Respondent, (Super. Ct. No. CRM024295) v.

JAMES RAY MOONEY III, OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- James Ray Mooney III, appeals from a judgment of conviction entered after a jury found him guilty of a ttempted murder, assault with a firearm, and possession of a firearm by a felon. Based on those convictions, and upon multiple enhancement allegations

which were found to be true, Mooney was sentenced to an aggregate term of 34 years to life in prison. He now asserts claims of insufficient evidence and sentencing error. Mooney’s challenge to the sufficiency of the evidence is meritless. With regard to sentencing, we conclude the trial court erred by imposing prior prison term enhancements on each count of conviction. Such enhancements do not attach to particular counts and may only be applied once. The unauthorized enhancements will be stricken, but the aggregate sentence remains the same since the trial court stayed the enhanced terms imposed under the subordinate counts. The abstract of judgment shall be amended to reflect the appropriate sentence and to correct certain clerical errors which the parties have identified. Subject to these modifications, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Mooney was charged by information with attempted murder (Pen. Code,1 §§ 664, 187; Count 1), attempted robbery (§§ 664, 211; Count 2), assault with a firearm (§ 245, subd. (a)(2); Count 3), and possession of a firearm by a felon (§ 29800, subd. (a)(1); Count 4). Enhancement allegations were attached to these charges for unlawful firearm use and infliction of great bodily injury (§§ 12022.5, subd. (a); 12022.7, subd. (a); 12022.53, subd. (d)). It was further alleged that Mooney had served two prior prison terms within the meaning of section 667.5. All offenses were alleged to have occurred on August 23, 2012. The case went to trial in May 2013. We summarize the evidence presented at trial in the light most favorable to the prosecution. (People v. Sotomayor (1996) 47 Cal.App.4th 382, 386.) Sergio Higareda sustained a gunshot wound while working at an auto parts store in Merced. The shooting happened in front of two of his co-workers, Emily Espinoza and Luis Gallardo. The perpetrator entered the store, produced a small pistol from the backpack he was carrying, then pointed the gun at Mr. Higareda, who was standing