P. v. Flores CA4/3

Filed 4/25/13 P. v. Flores CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046476

v. (Super. Ct. No. 06NF1325)

ALVARO FLORES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed as modified. Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Alvaro Flores was convicted of assault with a firearm and participating in a criminal street gang (Pen. Code §§ 245, subd. (a)(2), 186.22, subd. (a))1 in relation to a shooting that occurred outside a home where a party was taking place. On appeal, he argues the sentence on the gang count should have been stayed pursuant to section 654. The Attorney General concedes the point, and we concur. I FACTS Due to the posture of the case and the sole issue on appeal, we need not delve into the facts of this case too deeply. At a birthday party in 2005, a shooting took place outside the home where the party was taking place. A number of people were shot at and several were hit by gunfire. Victor Ortiz, who had apparently been invited to the party, had brought defendant with him. Ortiz heard several gunshots and saw defendant fire a gun from the vehicle in which they were leaving the scene. When the police arrived, a witness described the man who had fired the gun from the car. Another witness said “I think this is him,” when he saw defendant‟s picture in a photo array. About a week after the shooting, defendant told another witness he had shot out of the car and thought he had shot a man. He asked this witness not to say anything if the police spoke to her. Defendant was charged with attempted premeditated murder (§§ 664, 187, subd. (a); count one), participation in a criminal street gang (186.22, subd. (a), count two), assault with a firearm (§ 245, subd. (a)(2), count three), and shooting from a motor vehicle (former § 12034, subd. (c), now § 26100, subd. (c), count four). A number of