People v. Roman CA2/6

Filed 11/25/15 P. v. Roman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261291 (Super. Ct. No. 1404142) Plaintiff and Respondent, (Santa Barbara County)

v.

ERICK GARCIA ROMAN,

Defendant and Appellant.

Erick Garcia Roman appeals his convictions by jury of willful, deliberate 1 and premeditated attempted murder (count 1; Pen. Code, §§ 664/187, subd. (a)) , assault by means of force likely to produce great bodily injury (count 2; § 245, subd. (a)(4)), custodial possession of a weapon (count 3; § 4502, subd. (a)), and assault with personal use of a deadly weapon (count 4; § 245, subd. (a)(1)) with a gang enhancement finding on each count (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, appellant admitted two prior serious felony convictions (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds. (b) - (e); 1170.12, subds. (b) - (c).) The trial court sentenced appellant to 30 years to life, plus ten years on the serious felony enhancements (§ 667, subd. (a)(1)), for an aggregate sentence of 40 years to life state prison. We strike one of the five-year serious felony enhancements, vacate the conviction on count 2 for assault with force

1 All statutory references are to the Penal Code.

likely to cause great bodily injury (see In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5), and reduce the sentence to 35 years to life. As modified, the judgment is affirmed. Facts and Procedural History On August 18, 2011, appellant assaulted fellow inmate and rival gang member, Sergio Aparicio, in the Santa Barbara County Jail. Appellant, an Eastside Traviesos gang member, ran up to Aparicio and slashed the left side of his neck and head with a razor. The unprovoked attack was videotaped on a jail surveillance camera. Eastside Traviesos gang was an organized street gang controlled by the Surenos gang. The primary activities of the Eastside Traviesos and Surenos gangs were murder, attempted murder, assault with deadly weapons, and narcotics sales. Santa Barbara Sheriff Department Detective Steven Gonzalez, a gang expert, opined that the attack was committed to promote and benefit the Eastside and Surenos gangs. In the second phase of trial, appellant admitted that he was convicted in 2009 of attempted murder (§§ 664/187, subd. (a)) and street terrorism (§ 186.22, subd. (a)) and that it qualified as a prior strike. (§§ 667, subd. (d)(1); 1170.12, subd. (b)(1).) Appellant was sentenced to an aggregate term of 40 years to life state 2 prison. Prior Serious Felony Enhancements Appellant contends, and the Attorney General agrees, that a five-year serious felony enhancement must be stricken because the felony priors were not brought