People v. Perry CA3

Filed 7/18/16 P. v. Perry CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C078998

v. (Super. Ct. No. SF125430A)

CHARLES OWEN PERRY,

Defendant and Appellant.

A jury found defendant Charles Owen Perry guilty of numerous felonies, including first degree robbery. Defendant subsequently pleaded guilty to active participation in a criminal street gang, which had been charged in the same case but was bifurcated from the other charges. The trial court sentenced defendant to 21 years 4 months in state prison, including a consecutive eight-month term for active participation in a criminal street gang. Defendant now contends the trial court should have stayed execution of the sentence for active participation in a criminal street gang pursuant to Penal Code section 654.1 The People agree and we do too. Because correction of the error will require the trial court to exercise its discretion, we will remand the matter for resentencing and otherwise affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND Defendant and his friend Steven John Carpenter entered the home of Carpenter’s grandmother on September 9, 2013. Defendant was armed with a handgun. Carpenter’s twin sisters and two teenage boys were inside the home. Defendant held the gun to the heads of the two teenage boys and grabbed the gold chains from around their necks. Defendant and Carpenter then fled. The victims and Carpenter’s sisters told the police that Carpenter and another man had taken the boys’ gold chains at gunpoint. Defendant was arrested two days later while leaving the apartment of Brittany Gaines, the mother of his infant son. The police searched her apartment and found a loaded handgun, ammunition, and cartridge magazines. The officers also found indicia that defendant had been living with Gaines. A jury found defendant guilty of numerous felonies, including first degree robbery. (§ 212.5, subd. (a).) Thereafter, defendant pleaded guilty to the bifurcated count of active participation in a criminal street gang. (§ 186.22, subd. (a).) In exchange for defendant’s plea, the People moved to dismiss several gang enhancement allegations. The parties stipulated that the factual basis for the plea was found in the preliminary hearing transcript. The People’s gang expert testified at the preliminary hearing that defendant was a member of the Northside Gangster Crips, a criminal street gang. The expert further opined the home invasion robbery committed by defendant and Carpenter was gang-related, and stealing the gold chains would benefit the gang by allowing gang members to sell them in order to obtain money for guns and drugs. The trial court sentenced defendant to an aggregate term of 21 years 4 months in state prison, including eight months for active participation in a criminal street gang. DISCUSSION Defendant contends his sentence for active participation in a criminal street gang must be stayed because it is based upon the same acts as the robbery offenses for which he was punished. The People agree.