P. v. Pineda CA4/3

Filed 6/21/13 P. v. Pineda CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G046035

v. (Super. Ct. No. 09NF0610)

JOHN FELIPE PINEDA et al., OPINION

Defendants and Appellants.

Appeal from a judgment of the Superior Court of Orange County, James P. Marion, Judge; and Frank F. Fasel, Judge. (Retired judge of the Orange County Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant John Felipe Pineda. Alex Mendoza, for Defendant and Appellant Eduardo Javier Zavala. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent. * * *

THE COURT:* Co-defendants John Felipe Pineda (Pineda) and Eduardo Javier Zavala (Zavala) appeal after the jury convicted them of two counts of second degree robbery, two counts of assault with a deadly weapon and force likely to produce great bodily injury, and one count of active participation in a criminal street gang. On appeal, both defendants argue the trial court should have stayed the sentence for active participation in a criminal street gang pursuant to Penal Code section 654 rather than ordering it to run concurrently with the sentence for one count of robbery.1 The Attorney General concedes the argument, and we agree. The California Supreme Court‟s recent decision in People v. Mesa (2012) 54 Cal.4th 191, which held that a defendant may not be punished for both the substantive offense of active participation in a criminal street gang and the requisite underlying felony used to satisfy the gang participation element of the crime, compels this result. Accordingly, we stay the sentence imposed for active participation in a criminal street gang and affirm the judgment as modified. Background During the evening of February 22, 2009, Pineda and Zavala attended a family baptismal party which ended after the police arrived. Pineda and Zavala left the party to go to another party along with five other males. They all piled into Zavala‟s Chevy Tahoe and Zavala said to them “You want to cruise by?” Zavala then steered the vehicle towards a small alleyway. Zavala stopped in front of a small open garage where victims Elio Moreno and Miguel Quintero were sitting inside drinking beer. The men confronted Moreno and Quintero and demanded to know their gang membership. They struck Quintero and