People v. Huggins CA2/3

Filed 6/27/16 P. v. Huggins CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B264259

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA135685) v.

DEMATRAY HUGGINS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura R. Walton, Judge. Reversed and remanded. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Dematray Huggins of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)1; count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault with a firearm (§ 245, subd. (a)(2); count 3), and criminal threats (§ 422, subd. (a); counts 47). As to each count, the jury found to be true the sentence enhancement that the assault was a “violent felony” committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)); with respect to counts 37, the jury also found to be true the sentence enhancement allegation that defendant personally used a firearm (§12022.5, subd. (a)). The trial court sentenced Huggins to prison for a total of 15 years, including 13 years for the two sentence enhancements. On appeal, Huggins argues, and the People concede, that the trial court erred in imposing additional punishment for Huggins’s firearm use under both section 12022.5, subdivision (a), and section 186.22, subdivision (b)(1)(C). We agree. We therefore reverse and remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND On September 26, 2014, members of the Grape Street Crips gathered outside of Tammy Davis’s apartment and knocked on the front door. Tammy and her three sons, Jamal, Jamel, and Carthal exited the apartment. A fight ensued between Jamal and some of the gang members. After the fight ended, Huggins pointed a gun at Tammy and her sons and said “he was gonna shoot up their unit.” Huggins was charged and convicted of the counts described above. The trial court sentenced him to a prison term of 15 years, consisting of the low term of two years for assault with a firearm (count 3), enhanced by three years for Huggins’s personal use of a firearm, and further enhanced by 10 years for committing a “violent felony” to benefit a street gang. The court imposed concurrent terms on the remaining counts. Huggins filed a timely notice of appeal.