California Court of Appeal Jun 28, 2016 No. E064639Unpublished
Filed 6/28/16 P. v. Cano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064639
v. (Super.Ct.No. RIF097483)
JOSEPH ALFRED CANO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge.
Affirmed as modified.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and
Appellant.
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Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In 2003, defendant Joseph Alfred Cano was convicted of a gang related murder.
He was sentenced to an aggregate sentence comprising a term of life without possibility
of parole (LWOP) which was doubled due to a Strike allegation (Pen. Code, §§ 667,
subds. (c) & (e)), 1170.12, subd. (c)), plus a consecutive term of 25 years to life for a gun
use enhancement pursuant to Penal Code section 12022.53, subdivision (d), plus a
determinate term of 15 years in prison, and other stayed and concurrent terms.
Subsequently, defendant was resentenced in 2015 to single term of LWOP, plus a
consecutive term of 25 years to life for the gun enhancement, plus a consecutive term of
10 years for a gang enhancement, with the balance of sentence to remain unchanged.
Defendant appeals the resentencing.
On appeal, defendant argues that the imposition of the 10-year gang enhancement
was unauthorized because the circumstance giving rise to his LWOP term was the same
allegation of gang activity. The People agree with defendant’s contention, urging us to
strike, rather than stay, the enhancement. Accordingly, we modify the sentence to strike
the gang enhancement.
BACKGROUND
The facts of the offense are not relevant to our resolution of the issue presented on
appeal, and were set out in full in our opinion on defendant’s direct appeal (People v.
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Cano, (April 2, 2004, E033115) [nonpub. opn.]), so we do no recite them here. Suffice it
to say that the charges arise from gang-related shootings that killed one person, and
injured another, at a birthday party. (People v. Cano, supra, E033115, pp. 3-4].)
Defendant was tried by a jury and convicted of one count of first degree murder
(Pen. Code, § 187,1 subd. (a), count 1), two counts of discharging a firearm at an
inhabited dwelling house (§ 246, counts 2 & 3), three counts of assault with a
semiautomatic firearm (§ 245, subd. (b), counts 4, 5, 10), and one count of possession of
a semiautomatic firearm by an ex-felon.2 (Former § 12021, subd, (a)(1), count 6.) As to
count one, the jury found true a special allegation that the murder was committed for the
benefit of a criminal street gang, within the meaning of section 190.2, subdivision
(a)(22), as well as a separate gang enhancement pursuant to section 186.22, subdivision
(b)(1), and that defendant personally discharged a firearm within the meaning of section
12022.53, subdivision (d). As to counts four and five, the jury found true the allegations
that defendant personally used a firearm within the meaning of section 12022.5,
subdivision (a).
In a bifurcated proceeding, the trial court found true allegations that defendant had
served a prior prison term (§ 667.5, subd. (b)) and had previously been convicted of a
serious felony within the meaning of section 667, subdivision (a), and a prior serious or
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 A mistrial was declared as to three counts on which the jury could not reach a verdict.
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violent felony conviction within the meaning of the Strikes law. (§ 667, subds. (c) & (e).)
(See People v. Cano, supra, E033115, p. 2.) Defendant was sentenced to LWOP for the
first degree special circumstance murder, which was doubled due to his prior Strike
conviction. The court also imposed a term of 25 years to life for the gun discharge
allegation and a consecutive term of 10 years for the gang enhancement, for count one.
As to the balance of defendant’s convictions, defendant received either concurrent or
stayed terms. The judgment and sentence were affirmed with directions on direct appeal.
(People v. Cano, supra, E033115, pp. 16-17.)
Subsequently, defendant filed a petition for habeas corpus, asserting error in the
imposition of two LWOP terms by reason of the Strike.3 The trial court granted relief
and vacated the sentence for the murder conviction, imposing a single LWOP sentence
for that crime, in addition to the previously imposed enhancement of 25 years to life for
discharge of a firearm, as well as 10 years consecutive for the gang enhancement.
Defendant appealed.
DISCUSSION
Section 190.2, subdivision (a)(22), authorizes the imposition of a sentence of death
or life without the possibility of parole where the defendant intentionally killed the victim
while the defendant was an active participant in a criminal street gang, as defined in
subdivision (f) of section 186.22, and the murder was carried out to further the activities
3 The record does not include the habeas petition. However, the court and counsel referred to one during the hearing on the petition
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of the criminal street gang. (See People v. Elizalde (2015) 61 Cal.4th 523, 539.) Section
186.22, subdivision (b)(1)(C) imposes a 10-year enhancement when such a defendant
commits a violent felony. (People v. Lopez (2005) 34 Cal.4th 1002, 1004 (Lopez).)
Section 186.22, subdivision (b)(5) provides that “any person who violates this
subdivision in the commission of a felony punishable by imprisonment in the state prison
for life, shall not be paroled until a minimum of 15 calendar years have been served.”
The question of whether a first degree murder committed for the benefit of a gang
is subject to the 10-year enhancement in section 186.22, subdivision (b)(1)(C), or
whether such a murder falls within that subdivision's excepting clause and is governed
instead by the 15-year minimum parole eligibility term in section 186.22, subdivision
(b)(5), has been considered by the California Supreme Court in Lopez. There, the court
held the Legislature intended that section 186.22, subdivision (b)(5) applied to a straight
life term as well a term expressed as years to life (other than those enumerated in
subdivision (b)(4)) and therefore intended to exempt those crimes from the 10-year
enhancement in subdivision (b)(1)(C). (Lopez, supra, 34 Cal.4th at pp. 1010-1011.)
Indeed, the court emphasized that the exemption of section 186.22, subdivision (b)(5)
applies to “all lifers.” (Lopez, at p. 1010.)
The proper remedy is to strike the enhancement because a stay is unauthorized.
(People v. Flores (2005) 129 Cal.App.4th 174, 187.) Because the gang statute itself
resolves the issue, we need not address the applicability of section 654 to the question of
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whether imposition of the enhancement violates the prohibition against multiple
punishment for the same conduct.
DISPOSITION
The sentence is modified to strike the 10-year enhancement imposed pursuant to
section 186.22, subdivision (b)(1). As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
HOLLENHORST J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C) is unauthorized for a defendant sentenced to life without the possibility of parole for a gang-related murder, and ordered the enhancement stricken.
Issues
Whether a 10-year gang enhancement is authorized when the underlying murder conviction already carries a sentence of life without the possibility of parole based on gang-related special circumstances.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The proper remedy is to strike the enhancement because a stay is unauthorized.”
“The sentence is modified to strike the 10-year enhancement imposed pursuant to section 186.22, subdivision (b)(1).”