People v. Sims CA3

Filed 4/29/22 P. v. Sims CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093534

Plaintiff and Respondent, (Super. Ct. No. 13F02391)

v.

RICKY SIMS,

Defendant and Appellant.

A jury convicted defendant Ricky Sims of attempted murder and criminal threats, and found true several enhancements. The trial court sentenced defendant to a determinate term of 46 years in prison, with 10 of those years being from two serious felony conviction enhancements, and an indeterminate term of 14 years to life. In the second of two prior appeals, this court remanded for the trial court to consider its discretion to dismiss the prior serious felony conviction enhancement allegations and to amend and correct the abstract of judgment. On remand, the trial court declined to dismiss those enhancements, but did not amend and correct the abstract. In this third appeal, defendant now contends (1) the trial court abused its discretion by failing to consider his age in declining to dismiss those enhancements, and (2) the abstract of judgment should be amended. The People agree the abstract should be amended. Finding that the trial court did not abuse its discretion in declining to dismiss

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the enhancements, we will affirm the judgment but once again direct the trial court to amend and correct the abstract of judgment. BACKGROUND In April 2013, defendant fired three shots at his niece’s boyfriend (a member of a rival gang), striking the boyfriend in the arm. The jury found defendant guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a))1 and making criminal threats (§ 422), also finding true enhancement allegations that defendant personally used and personally discharged a firearm (§ 12022.53, subds. (b), (c)) and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the trial court also found true an allegation that defendant had a prior serious felony conviction. (§ 667, subd. (a).) The trial court sentenced defendant to seven years to life for the attempted murder, doubled for the prior strike conviction; 20 years for the firearm enhancement; 10 years for the gang enhancement; three years for the criminal threats conviction, doubled for the prior strike; and a five-year term on each conviction for the prior serious felony enhancement. In the first appeal, this court reversed the gang enhancement because there was no substantial evidence that a primary activity of defendant’s gang was any of the enumerated offenses in section 186.22, subdivision (e). (People v. Sims (Mar. 16, 2018, C074948) [nonpub. opn.] [pp. 14-15].) This court also modified the judgment to award 24 days of presentence conduct credit. This court remanded the matter to permit the trial court to exercise its newly granted discretion whether to dismiss the firearm enhancement, and directed the trial court to amend and correct the abstract of judgment to reflect the judgment as modified and as orally imposed. (Id. [p. 25].)