P. v. Figueroa CA4/3

Filed 6/19/13 P. v. Figueroa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G046456

v. (Super. Ct. No. 08NF0581)

MARK ANTHONY FIGUEROA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Francisco P. Briseno, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Allen G. Weinberg, 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, Steve Oetting and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Mark Anthony Figueroa of second degree murder (Pen. Code, § 187; all further statutory references are to this code) and street terrorism (§ 186.22, subd. (a)). It also found true he committed the murder for the benefit of a criminal street gang. (§ 186.22, subd. (b).) After defendant admitted he had served a prior prison term (§ 667.5, subd. (b)), the trial court sentenced him to 25 years to life, consisting of 15 years to life for second degree murder and an additional 10 years for the gang allegation. It also imposed, then stayed under section 654, a two-year sentence for the street terrorism count; it struck the prior prison term allegation for sentencing purposes. Defendant contends the court abused its discretion in failing to conduct a hearing to determine if a juror had been improperly influenced by seeing gang graffiti and his moniker in a courthouse bathroom. He also argues the court erred in imposing the 10- year enhancement for the gang allegation rather than striking it. Agreeing with the latter contention, we remand the case for resentencing. In all other respects, the judgment is affirmed.