People v. Salvatierra CA5

Filed 4/3/23 P. v. Salvatierra CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F083297 Plaintiff and Respondent, (Super. Ct. No. MCR058154) v.

ANTHONY JOSEPH SALVATIERRA, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Defendant Anthony Joseph Salvatierra was convicted of active participation in a criminal street gang, assault with force likely to cause great bodily injury, and a gang enhancement. After defendant’s trial, the Legislature substantially amended the statutes for the gang offenses and enhancement. The parties agree that the gang convictions and enhancement should be reversed and the matter remanded to the trial court for further proceedings. We agree but otherwise affirm the judgment. PROCEDURAL BACKGROUND The District Attorney of Madera County filed a second amended information on May 21, 2021, charging defendant with murder and the special circumstance that defendant intentionally killed while an active participant in, and to further the activities of, a criminal street gang (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22);1 count 1), attempted murder (§§ 664, 187, subd. (a); count 2), two counts of active participation in a criminal street gang (former § 186.22, subd. (a); counts 3 & 5), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 4). As to counts 1 and 2, the second amended information alleged that the crimes were committed to benefit a criminal street gang (former § 186.22, subd. (b)(5)) and that defendant personally used (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)) and discharged a firearm (§ 12022.53, subd. (c)(2)). As to count 4, the second amended information alleged that the crime was committed to benefit a criminal street gang (former § 186.22, subd. (b)(1)(A)). Defendant pleaded not guilty to the charges and denied all allegations. Defendant pleaded guilty to counts 3 and 5 during trial and, after a 23-day trial, the jury convicted defendant on June 29, 2021, of assault causing great bodily harm as charged in count 4 and found true that the offense benefited a criminal street gang. The jury acquitted defendant of murder, attempted murder, and all lesser included offenses.