People v. Reyes CA2/6

Filed 9/16/20 P. v. Reyes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B297101 (Super. Ct. No. 2018002717) Plaintiff and Respondent, (Ventura County)

v.

JONATHAN REYES,

Defendant and Appellant.

Jonathan Reyes (aka Swifty), an active Surtown Chiques gang member, was convicted by jury of conspiracy to commit assault with a firearm (count 1; Pen. Code, § 182, subd. (a)(1))1 and unlawful transfer of a firearm (count 2; § 27545) with gang enhancements (§ 186.22, subd. (b)). Appellant admitted two prior strike convictions (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)) and a prior serious felony conviction (§ 667, subd. (a)(1)) but was not advised of and did not waive his constitutional rights. (See In re Yurko (1974) 10 Cal.3d 857, 863.)

1 All statutory references are to the Penal Code.

The trial court sentenced appellant to 19 years state prison based on the following sentence calculation: On count 1 (conspiracy to commit armed assault), a six-year, second strike term plus five years on the gang enhancement and five years on the prior serious felony conviction for a total term of 16 years; on count 2 (unlawful transfer of a firearm), a consecutive two-year term plus one year on the gang enhancement. Appellant appeals, contending that the prior strike and prior conviction enhancements must be reversed because appellant was not advised and did not waive of his constitutional right. (See People v. Mosby (2004) 33 Cal.4th 353, 360 (Mosby).) The Attorney General agrees. Appellant further argues, and the Attorney General agrees, that the trial court erred in not staying the three-year sentence on count 2 (unlawful transfer of a firearm) pursuant to section 654. We reverse the prior strike and prior serious felony conviction enhancements and remand for retrial and resentencing. On resentencing, the trial court shall stay the sentence on count 2 pursuant to section 654. Facts and Procedural History On November 15, 2017, appellant and fellow gang member Pablo Cruz (aka Lil Clumsy) picked up a third gang member and drove around Oxnard. Cruz saw what he believed were rival Colonia gang members in a van driving through the neighborhood. Cruz yelled “Surtown!” Shots were fired at appellant’s car and appellant was shot in the chest. Cruz protested: “‘[W]e can’t let this shit fly. Like they just straight blasted us in our own hood. Nah, fuck that. We got to get ‘em.’” Appellant texted fellow gang member Joseph Tamayo (Maniac) and got an AR-15 rifle and three loaded magazines from gang member Jose Geronimo (Mugsy). Tamayo and appellant