People v. Duby CA2/6

Filed 5/24/16 P. v. Duby 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B226439 (Super. Ct. No. VA101903) Plaintiff and Respondent, (Los Angeles County)

v.

LOUIS ALLEN DUBY,

Defendant and Appellant.

Louis Allen Duby appeals a judgment after a jury convicted him of 1 shooting at an occupied vehicle (Pen. Code, § 246 ), unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a)), evading a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)), assault with a semiautomatic firearm (§ 245, subd. (b)), and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true allegations that appellant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and committed all but the evading offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced him to 30 years to life in state prison. The sentence includes concurrent terms of 17 years for the assault with a semiautomatic firearm (count 6) and

1 All statutory references are to the Penal Code unless otherwise stated.

five years for the assault with a firearm (count 7). Appellant contends the evidence is insufficient to support the gang enhancements. He also contends that the sentences on counts 6 and 7 should have been stayed pursuant to section 654. We agree with the latter contention and order the judgment modified accordingly. Otherwise, we affirm. STATEMENT OF FACTS The Substantive Offenses On August 1, 2007, a Los Angeles County Deputy Sheriff was on patrol in Hawaiian Gardens when he heard approximately eight gunshots followed by the sound of cars speeding away. The deputy pulled up to a passing car and recognized the driver as Edward Solorzano, a member of the Varrio Hawaiian Gardens (VHG) criminal street gang. Solorzano appeared to be scared and yelled, "Those fuckers are shooting at me in the white car." Solorzano pointed at a white Pontiac sedan and said, "That's them right there." Appellant was driving the Pontiac and Steve Valdivia and Gustavo Aquino were his passengers. The deputy activated his overhead lights and appellant sped away. During the ensuing five-mile pursuit, appellant drove approximately 45 miles per hour over the speed limit and ran numerous stop signs and red lights. Appellant, Valdivia, and Aquino were arrested after appellant stopped the car and they all attempted to flee on foot. Appellant and Aquino were taken into custody in front of a nursery. Valdivia ran into the nursery and was apprehended in the yard of a nearby residence. 2 After waiving his Miranda rights, appellant admitted he knew that the Pontiac he was driving had been stolen. When asked if he shot at any VHG gang members earlier that day, he replied, "Don't ask me. You know what happened. I can't say anything else to you. You know what's up." The police searched the area where Valdivia was apprehended and found a .22 caliber magazine and three rounds of live .22 caliber ammunition. The police also 2 Miranda v. Arizona (1966) 384 U.S. 436.