People v. Ramos CA5

Filed 6/14/23 P. v. Ramos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082502 Plaintiff and Respondent, (Super. Ct. No. BF172121A) v.

FRANKIE DUQUE RAMOS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Diane E. Berley, 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, Darren K. Indermill and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Defendant Frankie Duque Ramos entered an illegal gaming business with three other gang members and robbed the business at gunpoint. While fleeing, the four robbers shot at the security guard and wounded him in the leg. After defendant’s trial, the Legislature substantially amended the statutes applicable to gang enhancements and sentencing. The parties agree that the gang enhancements should be reversed and the matter remanded to the trial court for further proceedings, and that defendant is entitled to resentencing under the amended sentencing statutes. We agree that the gang and gang-related firearm enhancements should be reversed and remand for full resentencing. PROCEDURAL BACKGROUND On September 25, 2020, a jury convicted defendant of attempted murder (Pen. Code, §§ 187, 664;1 count 1), second degree robbery (§ 212.5, subd. (c); count 2), assault with a firearm (§ 245, subd. (a)(2); count 3), conspiracy to commit robbery and assault with a firearm (§§ 182, subd. (a)(1), 212.5, subd. (c), 245, subd. (a)(2); count 5), and unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1); count 6). The jury failed to reach a verdict as to count 4, which charged defendant with active participation in the Loma Bakers criminal street gang (§ 186.22, subd. (a)), and the trial court dismissed this charge upon the People’s motion when defendant was sentenced. The jury also found true enhancements that defendant committed the crimes to benefit a criminal street gang as to all counts (former § 186.22, subd.(b)(1)), and, as to counts 1 and 2, that defendant personally used a firearm (§ 12022.53, subd. (b)) and discharged a firearm (§ 12022.53, subd. (c)) causing great bodily injury (§ 12022.53, subd. (d)), or that a principle did so during a crime to benefit a criminal street gang (§ 12022.53, subd. (e)). The jury further found true, as to counts 3 and 5, that defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7).