People v. Carrillo CA3

Filed 4/19/22 P. v. Carrillo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C091539

Plaintiff and Respondent, (Super. Ct. No. 17FE012477)

v.

LEO A. CARRILLO,

Defendant and Appellant.

A jury convicted defendant Leo A. Carrillo1 of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664 – counts one & four),2 two counts of discharging a firearm from a motor vehicle (§ 26100, subd. (c) – counts two & five), three counts of assault with a semiautomatic firearm (§ 245, subd. (b) – counts three, six, & eight), two

1 In light of the spelling employed elsewhere in the appellate record, the abstract of judgment appears to have misspelled defendant’s name as “Carillo.” On remand, the trial court shall ensure that the abstract of judgment reflects defendant’s correct name. 2 Undesignated statutory citations are to the Penal Code.

1

counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1) – counts seven & nine), one count of being a felon in possession of ammunition (§ 3035, subd. (a)(1) – count ten), and a count of hit and run causing injury (Veh. Code, § 20001, subd. (b)(1) – count eleven). The jury found true allegations that defendant personally used and intentionally discharged a firearm in connection with attempted murder and discharge of a firearm from a motor vehicle (§ 12022.53, subds. (b)-(d)); used a semiautomatic firearm in committing assault with a firearm as to counts three, six, and eight (§ 12022.5, subds. (a), (d)); personally inflicted great bodily injury in committing attempted murder as to count three (§ 12022.7, subd. (a)), inflicted great bodily injury in counts one and two (§ 12022.53, subd. (d)), and used a firearm in committing attempted murders (§ 12022.53, subd. (b)). After the jury convicted defendant, the trial court found true the allegations that defendant had a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to a determinate term of 13 years 4 months plus an indeterminate term of 53 years to life in state prison. Defendant also received a term of eight years in state prison to be served concurrently. The trial court stayed the sentences on counts two, three, five, six, and seven under section 654. Defendant appeals. In defendant’s opening briefing, he contends (1) the evidence at trial was insufficient to support his conviction of attempted murder of one of his victims, D.M., (2) the trial court violated his due process rights by instructing the jury with CALCRIM No. 315 regarding the degree of certainty of eyewitnesses, and (3) the abstract of judgment must be corrected to reflect the trial court’s stay of the sentence for count two under section 654. In supplemental briefing, defendant argues that he is entitled to be resentenced under the recently amended version of section 654, and that he is entitled to the benefit of the newly added subdivision (b)(6) of section 1170. The Attorney General agrees that the abstract of judgment must be corrected to reflect the trial court’s