People v. Munoz CA2/3

Filed 6/28/24 P. v. Munoz CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B330751

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA110065) v.

NICHOLAS MUNOZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline H. Lewis, Judge. Reversed with directions. Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________ A jury convicted Nicholas Munoz of attempted murder and of shooting at an occupied vehicle and found true gun use and gang allegations. Thereafter, our Legislature passed Assembly Bill No. 333, which amended Penal Code1 section 186.22, the gang statute. This Division reversed the true findings on the gang allegations based on that law and remanded the matter. On remand, the People elected not to retry the gang allegations. The trial court then imposed a sentence that included a gun enhancement under section 12022.53 as to count 3, shooting at an occupied vehicle. Munoz now contends that the gun enhancement on that count could only be imposed if he violated section 186.22. The People concede, and we agree, that because Munoz no longer stood convicted of violating section 186.22, the gun enhancement could not be imposed. Accordingly, his sentence on count 3 was unauthorized and the matter must be remanded for resentencing. BACKGROUND In 2015, Munoz, a gang member, and his cousin shot at an occupied car containing rival gang members. A jury convicted Munoz of two counts of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a); counts 1 & 2) and of shooting at an occupied vehicle (§ 246; count 3). As to all counts, the jury found true gun use allegations under section 12022.53, subdivisions (b) and (c) and principal gun use allegations under subdivisions (b), (c), (d) and (e)(1) of that