 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Clavano9/8/2005
ando handed him a gun wrapped in a dark-colored bandana. Shortly after Oliver walked toward Avila's apartment, Cardenaz heard four or five gunshots. Cardenaz's testimony was corroborated by the testimony of Griffin and other evidence. Griffin testified he thought the gun being fired was a .357 magnum. When Amando was arrested, he had a .357 magnum gun wrapped in a dark-colored bandana in his waistband. Griffin also saw someone matching Oliver's description jump over the fence. Police found clothes matching Cardenaz's description of the clothes Oliver and Amando were wearing inside defendants' apartment. There was no evidence that Cardenaz and Griffin knew each other or had spoken about the case before trial.
Oliver's statements were cumulative to the testimony of other witnesses, including Munoz, Burks, and Reyes. Munoz testified that Townsend had "pissed off a lot of people," and Burks testified that Townsend said people were after him. Townsend told Munoz he had stolen the car and stereo of two men who lived near where Townsend was staying. Reyes testified that, before the shooting, she took someone whose name she did not know around San Bernardino looking for his brother's Escort. She said the stereo and some personal items were missing from the Escort. Townsend later told Reyes that he had stolen the Escort and its stereo system. The admission of Oliver's statement against Amando was nothing more than cumulative and did not affect the verdict. (People v. Song, supra, 124 Cal.App.4th at p. 984.)
D. The Imposition of the Upper Term of Three Years for Amando's Section 12022, Subdivision (d), Firearm Enhancement Did Not Violate Amando's Right to a Jury Trial
Amando contends that the trial court's imposition of the upper term of three years on his section 12022, subdivision (d), enhancement violated his right to a jury trial under Blakely. In People v. Black, supra, 35 Cal.4th 1238, the state Supreme Court held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Id. at p. 1244.) Accordingly, we reject defendant's contention.
E. Oliver's 10-Year Section 12022.53, Subdivision (b), Enhancement Must be Stayed
Oliver contends that his 10-year enhancement under section 12022.53, subdivision (b) (personal firearm use) must be stricken, because the trial court imposed a greater, 25-year-to-life enhancement under section 12022.53, subdivision (d) (intentional and personal discharge of firearm causing great bodily injury or death). The People agree that the section 12022.53 subdivision (b), enhancement was erroneously imposed and must therefore be stricken. We conclude that the enhancement must be stayed, not stricken.
Where, as here, more than one section 12022.53 enhancement has been found true, the trial court must impose each enhancement but stay the execution of all such enhancements except the one that provides for the longest term of imprisonment. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-713 & fn. 5 [harmonizing section 12022.53, subdivisions (f) and (h)].) Accordingly, Oliver's 10-year enhancement under section 12022.53, subdivision (b), is hereby stayed.
DISPOSITION
Oliver's 10-year enhancement imposed under section 12022.53, subdivision (b), is stayed, and the matter is remanded to the trial court with directions to amend Oliver's abstract of judgment to reflect the stay of this enhancement. The trial court is further directed to forward Oliver's amended abstract of judgment to the Department of Corrections. In all other respects, the judgme
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|