People v. Vickers CA5

Filed 9/2/16 P. v. Vickers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F071606 Plaintiff and Respondent, (Super. Ct. No. SC064720A) v.

LARRY VICKERS, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- Larry Vickers, Jr. appeals after the trial court resentenced him following notification from the California Department of Corrections and Rehabilitation that the

* Before Kane, Acting P.J., Franson, J. and Smith, J.

original sentence imposed was unauthorized because it failed to comply with statutory requirements. We find no error in the trial court’s actions and affirm the sentence. FACTUAL AND PROCEDURAL SUMMARY1 In 1995, over a period of a little more than four months, Vickers committed two crimes both involving the use of a firearm. The two cases were tried together in early 1996. In the first incident, Vickers, a gang member, was apparently riding in a vehicle when a member of a rival gang was spotted riding a bicycle. Vickers shot at the victim with a handgun. The victim ducked behind another vehicle driving down the street. Victims two and three were inside the vehicle. Four bullets fired by Vickers struck the vehicle. As a result of this incident, Vickers was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)),2 shooting at an occupied vehicle (§ 246), and discharge of a firearm from a vehicle (§ 12034, subd. (c)) (hereafter the assault counts). In addition, the jury found true the allegations that each crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that Vickers personally used a firearm in the commission of each crime (§ 12022.5, subd. (a)). Vickers was sentenced to the upper term of four years for the assault count, and an additional four years for the firearm enhancement. The sentences on the remaining counts were stayed. In the second incident, a fight occurred in the territory of a Crip gang. Vickers ran out of a nearby house and shot and killed a rival gang member who had been watching the fight. Vickers was convicted of first degree murder. (§ 187, subd. (a).) In addition, the jury found true the allegations that the crime was committed for the benefit of a