P. v. Carvajal CA2/8

Filed 5/13/13 P. v. Carvajal CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B243550

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA050224) v.

STEVEN CARVAJAL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. LaForteza, Judge. Affirmed as modified.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson, Lance E. Winters and Seth McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Steven Carvajal was convicted of several crimes. The trial court selected the assault with a firearm to serve as the principal term for defendant‟s sentence. In addition to imposing a term for the substantive offense, the court also imposed a term for the gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C) for a violent felony and for the personal use of a firearm under section 12022.5, subdivision (a).1 The sole issue on appeal is whether the court erred in imposing both enhancements. The Attorney General concedes error, and we reduce the term of the gang enhancement so that it does not violate our high court‟s holding in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). We also order the abstract of judgment be modified to reflect defendant‟s actual convictions. As modified, we affirm the judgment of conviction. FACTS AND PROCEDURE Because defendant raises only a sentencing issue, we describe the facts only briefly (People v. McNeely (1994) 28 Cal.App.4th 739, 742), interpreting them in the light most favorable to the verdict (People v. Halvorsen (2007) 42 Cal.4th 379, 419). Defendant was a member of the Midtown Criminals street gang. Arturo Gonzalez was a member of a rival gang and lived next door to L.G.‟s mother. On August 27, 2010, defendant and two companions drove by Gonzalez‟s home and shouted at Gonzalez, who was outside. Someone in the car yelled “fuck cookie monsters,” a derogatory reference to Gonzalez‟s gang. Gonzalez fled because he was worried about being shot. Gonzalez told a deputy sheriff after the incident that defendant pointed a gun at him but denied that at trial. Meanwhile, L.G., her boyfriend A.H., and others were outside L.G.‟s mother‟s home when defendant drove by the home. L.G. saw defendant get out of a car driven by someone else and shoot a shotgun at least twice in the direction of L.G. and A.H. A.H. fled. L.G. recognized defendant because she had seen him earlier that evening at a gas