Filed 1/28/14 P. v. Pena CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B246900
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA391840)
v.
RONALD PENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Craig J.
Mitchell, Judge. Reversed in part, affirmed in part, and remanded for further
proceedings.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Keith H. Borjon,
Supervising Deputy Attorney General, and Joseph P. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
_________________________________
Defendant Ronald Pena appeals from the judgment entered following a jury trial in
which he was convicted of three counts of attempted murder, three counts of assault with
a firearm, and a single count of possession of a firearm by a felon. Defendant admitted an
allegation that he had suffered a prior serious or violent felony conviction within the
scope of the “Three Strikes” law (Pen. Code, § 667, subds. (b)–(i)) and was sentenced to
a second strike term.1 Although he was not asked to admit the allegation, defendant’s
sentence included a prior serious felony enhancement pursuant to section 667, subdivision
(a)(1).
Defendant contends the trial court erred by denying his motion for a judgment of
acquittal at the close of the prosecution’s case-in-chief with respect to one of the three
counts of attempted murder. We conclude one of defendant’s attempted murder
convictions must be reversed because the evidence at the close of the prosecution’s case-
in-chief was insufficient to show that defendant specifically intended to kill more than
two people. Thus the trial court should have granted defendant’s motion for acquittal
with respect to one of the attempted murder counts.
Defendant further contends that he was not advised of his rights before admitting
the second strike allegation (§ 667, subd. (b)–(i)) or the prior serious felony enhancement
allegation (§ 667, subd. (a)). The Attorney General concedes this point. We further note
that the trial court only asked defendant to admit the strike allegation, not the prior serious
felony enhancement allegation (§ 667, subd. (a)(1))and the prosecutor offered no proof of
that enhancement allegation.
BACKGROUND
1. The prosecution’s case-in-chief
a. The shooting and arrest
On the night of December 14, 2011, at about 9 p.m., 14-year-old Allan C., his 15-
year-old brother Luis C., and their friend Angel N. were walking towards Santa Monica
1 Undesignated statutory references pertain to the Penal Code.
2
and Western. All three boys were members of the Mara Salvatrucha (MS13) gang, and
were within territory claimed by their gang. At the same time, the 29-year-old defendant
was walking down the same sidewalk in the opposite direction.
As defendant passed the boys, he said “Fuck Mierdas” (an insult to the MS13
gang) and displayed a gun in his waistband. Luis told defendant he was “stupid” because
the “police is right there.” Defendant walked away. The boys began following defendant
at a distance. Luis admitted at trial he was making gang hand signs.
Defendant suddenly turned and fired two shots toward the boys, who were 40 to 50
feet away. No one was struck. Luis testified that when defendant shot, the three boys
were alongside one another, each about an arm’s length from the next. Allan testified that
Angel was about five feet behind them. Luis thought defendant was shooting at him.
Allan testified the gun was pointed at him and Luis.
The boys ran away from defendant and toward several Los Angeles Police
Department (LAPD) officers, including gang officers, who had been conducting a traffic
stop and had heard the shots. The officers checked to see if the boys were armed and
asked them what happened. All three boys pointed down the street and told the officers
that “he” or “that guy” shot at them. Angel described defendant’s clothing. The officers
looked in the direction the boys pointed and saw defendant walking along Western.
The officers drove toward defendant, who ran across the street, then slowed to a
fast-paced walk. The officers saw defendant toss a handgun into some bushes. An
infrared scanner in a police helicopter indicated that the gun was hot. The officers
detained defendant and recovered the handgun, which was a revolver containing two
spent casings and one live round. Defendant wore a black glove on his right hand only.
Allan and Luis separately identified defendant at a field show-up. Each told
officers that defendant was the man who fired shots toward them.2
2 The record does not indicate whether Angel identified defendant.
3
The prosecutor played a video recovered from an exterior security camera at a
Burger King in the area. The prosecutor described the video as depicting defendant
shooting with the gun aimed in front of him, not upward.
b. Expert testimony regarding gangs
Officer Brandon Purece testified as the prosecution’s gang expert, although no
gang enhancement was alleged. Purece opined defendant was a member of a small gang
called La Raza Loca that did not get along with any other gangs. Purece testified that
saying “Fuck Mierdas” to MS13 members was both a challenge and a warning of
impending violence. Purece further testified that shooting at rival gang members
enhances both a gang’s reputation and a shooter’s status within his gang.
2. Defense case
Clinical psychologist Dr. Catherine Scarf testified defendant has an IQ of 66,
which indicates “borderline intellectual functioning.” Scarf found defendant deficient in
“non-verbal reasoning” and working memory, and “borderline” for “processing speed.”
She explained that a person with this level of functioning might be gullible, lack common
sense, or fail to understand what someone is saying and respond inappropriately or
illogically, for example by misinterpreting a threat as being more serious that it actually
is.
Defendant testified that he was not a gang member and denied that he had ever
told police he was a gang member.
Defendant testified that the three boys identified themselves as members of MS13,
made gang hand signs, and asked him where he was from, which defendant understood as
a question about gang membership. Defendant had been beaten by members of MS13
about a year earlier and had experienced problems with MS13 members since his years in
middle school. He told the boys he did not “bang” and kept walking.
The boys followed defendant and one of them said he was going to “fuck up”
defendant. Defendant continued to walk and ignored the boys until he heard one of them
threaten to kill him. Defendant knew they were “juveniles,” but there were three of them,
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and defendant was scared. He turned and fired two shots into the air. The boys ran, and
defendant crossed the street.
Defendant admitted that after he was in custody he wrote a statement for the police
saying, “‘They were going to kill me so I got scared, and I saw that one of them was
going to pull something from his pockets so I started to go away.’” He also wrote, “‘I
never said I was going to kill them or anything like that. I was just scared for my life, so I
fired two shots to the air.’”
Defendant explained that he had been drinking brandy and taking
methamphetamine for several days straight. He was wearing one glove because it was
cold out, but he had lost the other glove. He was carrying the gun, which he stole from
his drug dealer a few days before, because “people” had threatened him.
Defendant denied telling any police officers that he was hunting MS13 members or
that he intended to hurt or kill the boys. He admitted suffering a prior felony conviction
for making a criminal threat at his place of employment in 2005, but he was inebriated
and remembered only that he argued with a security officer. The parties stipulated that,
because of the prior felony conviction, defendant was precluded from owning or
possessing a firearm.
Defendant also presented evidence tending to show that Allan and Luis (or one of
them) participated in an altercation resulting in a head injury to one of their neighbors in
an unrelated incident during the month after the charged shooting.
3. Prosecution’s case in rebuttal
Two LAPD officers testified that defendant admitted membership in the La Raza
Loca gang in 2000 and 2010.
LAPD Officer Bryan Delavan, testified that he spoke to defendant after arresting
him on the day of the shooting. Defendant did not appear to be under the influence of
methamphetamine and did not seem to be “particularly inebriated.” Defendant said he
belonged to the “La Raza Trece” gang. He further stated that when he was growing up,
5
the MS13 gang was “kind of a problem.” He did not get along with MS13, and MS13
had bothered his younger brother.
On the day after the shooting, LAPD Officer Brian Oliver spoke with defendant at
the jail. Defendant initiated the conversation and asked Oliver how much time he would
get for “shooting at them.” Oliver and defendant then spoke about defendant’s
background. Defendant said he began hating MS13 when members of that gang picked
on, and “jumped” him in high school. Defendant told Oliver that earlier in the week
MS13 members jumped his brother, and he wanted them to pay for what they had done.
A few days prior to the charged shooting, defendant and some of his friends drove around
with a gun, “hunting” for MS13 gang members in the area of Santa Monica and Western.
Defendant knew that MS13 members congregated at that location, but he and his friends
did not find any MS13 members that day. Defendant told Oliver that he felt that shooting
an MS13 gang member would cause them to leave his brother alone.
Regarding the charged shooting, defendant told Oliver that he thought if he shot
one of the boys, the boy would not live; he was aiming at one that was wearing a long
sweat shirt but he would have shot all three; he had a bullet for each of them; his shots
missed because he was a little drunk.
The prosecution also presented additional evidence regarding the 2005 incident
leading to defendant’s criminal threat conviction.
4. Verdict and sentence
The jury convicted defendant of attempted murder and assault with a firearm with
respect to each of the three boys, plus possession of a firearm by a felon. The jury found
defendant personally used a firearm and personally and intentionally fired a firearm
(§ 12022.53, subds. (b), (c)) in the commission of each attempted murder, and he
personally used a firearm (§ 12022.5, subd. (a)) in the commission of each assault with a
firearm. Defendant admitted an allegation pursuant to the Three Strikes law (§ 667, subs.
(b)–(i)) that he had suffered a prior serious or violent felony conviction. Defendant was
not asked to admit, and did not admit, a prior serious felony enhancement allegation (§
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667, subd. (a)(1)). The prosecution offered no proof to support the section 667,
subdivision (a)(1) allegation.
The court sentenced defendant to prison for 35 years, consisting of a second strike
term of 10 years for the attempted murder of Luis, plus 20 years for the section 12022.53,
subdivision (c) enhancement, plus 5 years for the section 667, subdivision (a)(1)
enhancement that had been neither proved nor admitted. The trial court made the terms
on the other two attempted murders and the possession of a firearm by a felon count run
concurrently and stayed the terms on the assault with a firearm convictions.
DISCUSSION
1. Admission of strike and enhancement allegations
a. Defendant’s admission
After the jury returned its verdicts, the trial court asked defense counsel whether
defendant would “stipulate to the prior conviction of a strike prior within the meaning of
Penal Code section 1170 et seq. and 667.5 et. seq. as well?” Defense counsel replied,
“Yes.” The court then asked defendant, “[A]re you willing to admit that within the
meaning of the Penal Code, that you have suffered a prior serious felony in case
BA 293630, a violation of Penal Code section 422, that being a prior strike conviction in
2006. [¶] Do you admit that prior conviction?” Defendant said, “Yes.”
b. Defendant’s admission of the strike allegation was involuntary, and he did not
admit the section 667, subdivision (a)(1) enhancement allegation
Defendant contends his “admission to a prior strike and serious felony conviction”
cannot be deemed to have been voluntary and intelligent because he was not advised of
his rights to a jury trial, confrontation, and the privilege against self-incrimination, nor
was he advised of the consequences of his admission. The Attorney General aptly
concedes this contention and asks this court to reverse the true finding on defendant’s
“prior conviction allegation” and remand for a new trial of that allegation.
We agree that the failure to advise defendant of the rights he would relinquish in
order to admit the strike allegation and the section 667, subdivision (a)(1) enhancement
7
allegation rendered defendant’s admission involuntary. (People v. Howard (1992) 1
Cal.4th 1132, 1175, 1179; In re Yurko (1974) 10 Cal.3d 857, 863–864.)
We further note that the trial court only asked defendant to admit the strike
allegation. The court did not ask defendant to admit the section 667, subdivision (a)(1)
enhancement allegation, defendant did not admit it, and the prosecution did not offer any
proof of this enhancement allegation. The trial court nonetheless applied the
enhancement allegation, adding a five-year enhancement to defendant’s sentence.
Accordingly, we reverse the trial court’s implied findings on both the strike and
section 667, subdivision (a)(1) allegations and remand for a new trial upon these
allegations.
2. Denial of motion for acquittal
a. Motion for acquittal
At the close of the prosecution’s case-in-chief, defendant moved for acquittal of
the attempted murder and assault with a firearm charges pertaining to Angel (counts 5 and
6). The trial court denied the motion after noting that Luis testified that Angel was
“within arm’s reach” of Allan.
Defendant contends the denial of his motion for acquittal pursuant to section
1118.1 was error with regard to the attempted murder charge in count 5 because
defendant fired only two shots from a distance of 40 to 50 feet, no one was struck by the
shots, and the record did not show that all three boys “were directly in the line of fire,”
“two bullets could have struck all three” boys, or defendant “intended to kill all three with
two bullets.”
b. Evaluating sufficiency of evidence for a section 1118.1 motion for acquittal
When reviewing a claim the trial court erred by denying a motion for acquittal
under section 1118.1, we apply the same standard as when evaluating the sufficiency of
evidence to support a conviction, but we consider only the evidence in the record at the
time the motion was made. (People v. Augborne (2002) 104 Cal.App.4th 362, 371;
People v. Smith (1998) 64 Cal.App.4th 1458, 1464.) Thus, we review the evidence
8
presented during the prosecution’s case-in-chief in the light most favorable to the
judgment to decide whether substantial evidence supports the conviction, so that a
reasonable jury could find guilt beyond a reasonable doubt. (People v. Tully (2012) 54
Cal.4th 952, 1006.)
c. Legal principles applicable to attempted murder of multiple individuals
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623.) “[A] person who intends to kill can be guilty of attempted
murder even if the person has no specific target in mind. An indiscriminate would-be
killer is just as culpable as one who targets a specific person.” (People v. Stone (2009) 46
Cal.4th 131, 140.) “‘The act of firing toward a victim at a close, but not point blank,
range “in a manner that could have inflicted a mortal wound had the bullet been on target
is sufficient to support an inference of intent to kill . . . .”’” (People v. Smith (2005) 37
Cal.4th 733, 741.) Where there are multiple alleged victims, the prosecution must prove
that defendant intended to kill each victim, and the defendant’s guilt must be judged
separately as to each victim. (People v. Perez (2010) 50 Cal.4th 222, 230 (Perez).)
Where a defendant shoots at a group of people, the maximum number of attempted
murder victims will generally be equal to the number of shots fired, absent evidence that
defendant specifically intended to kill two or more people with a single shot or
specifically intended to kill a greater number of victims but was thwarted from firing the
required additional shots by circumstances beyond his control. (Perez, supra, 50 Cal.4th
at pp. 230–231; People v. McCloud (2012) 211 Cal.App.4th 788, 807 (McCloud) [where
defendants fired 10 shots and 2 victims were killed, evidence supported 8 attempted
murder convictions].)
For example, in Perez, supra, 50 Cal.4th 222, the defendant fired one shot at a
distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven police
officers and one civilian whom he believed to be rival gang members. The shot struck
and injured one officer. (50 Cal.4th at pp. 226–227.) Perez was convicted of seven
9
counts of attempted murder of a peace officer, one count of attempted murder, and other
offenses. The Supreme Court reversed all of the attempted murder convictions for
insufficiency of evidence of intent to kill except the one pertaining to the injured officer,
explaining, “In this case there is no evidence that defendant knew or specifically targeted
any particular individual or individuals in the group of officers he fired upon. Nor is
there evidence that he specifically intended to kill two or more persons with the single
shot. Finally, there is no evidence defendant specifically intended to kill two or more
persons in the group but was only thwarted from firing off the required additional shots
by circumstances beyond his control. Without more, this record will not support
conviction of eight counts of premeditated attempted murder.” (Id. at pp. 230–231, fns.
omitted.) Although Perez “endangered the lives of every individual in the group into
which he fired the single shot,” (id. at p. 225), which supported his eight assault with a
firearm convictions, merely endangering them did not demonstrate an intent to kill.
The “kill zone” theory argued by the prosecutor in the trial court and the Attorney
General here addresses specific intent to kill all persons within a certain zone through use
of a weapon so pervasively lethal that it is expected to kill all persons within the zone.
The “kill zone” theory first was recognized by the California Supreme Court in People v.
Bland (2002) 28 Cal.4th 313. The Court held that although the doctrine of transferred
intent is inapplicable to attempted murder (id. at p. 331), the nature and scope of an attack
directed at a primary victim may support an inference that the defendant concurrently
intended to kill everyone in the kill zone. Quoting a Maryland case, Bland provided
examples of the types of attacks that would support a theory of concurrent intent to kill,
including “‘plac[ing] a bomb on a commercial airplane intending to harm a primary target
on board’” while ensuring the death of all other passengers as well or attacking the
primary target and his or her companions by means of a spray of automatic weapon fire or
an explosive device. (Id. at pp. 329–330.)
However the “kill zone” theory does not apply when a defendant merely endangers
more than one person. As this division explained in McCloud, supra, 211 Cal.App.4th at
10
p. 798, “The kill zone theory thus does not apply if the evidence shows only that the
defendant intended to kill a particular targeted individual but attacked that individual in a
manner that subjected other nearby individuals to a risk of fatal injury. Nor does the kill
zone theory apply if the evidence merely shows, in addition, that the defendant was aware
of the lethal risk to the nontargeted individuals and did not care whether they were killed
in the course of the attack on the targeted individual. Rather, the kill zone theory applies
only if the evidence shows that the defendant tried to kill the targeted individual by killing
everyone in the area in which the targeted individual was located. The defendant in a kill
zone case chooses to kill everyone in a particular area as a means of killing a targeted
individual within that area. . . . [¶] The kill zone theory consequently does not operate as
an exception to the mental state requirement for attempted murder or as a means of
somehow bypassing that requirement. In a kill zone case, the defendant does not merely
subject everyone in the kill zone to lethal risk. Rather, the defendant specifically intends
that everyone in the kill zone die. If some of those individuals manage to survive the
attack, then the defendant—having specifically intended to kill every single one of them
and having committed a direct but ineffectual act toward accomplishing that result—can
be convicted of their attempted murder.”
d. At the time of defendant’s motion for acquittal, the evidence supported only
two counts of attempted murder
At the conclusion of the prosecution’s case-in-chief, the evidence showed that
defendant had fired two shots in the direction of the three boys, from a distance of 40 to
50 feet. The firing of two shots supported an inference that defendant specifically
intended to kill two boys. As demonstrated in Perez, however, the firing of two shots did
not indicate an intent to kill the third boy without evidence that defendant specifically
intended to kill two or more of the boys with a single shot, or was thwarted from firing
the third shot by circumstances beyond his control such as a malfunction of his gun or a
bystander thwarting him. Thus, the firing of two shots supported, at most, two counts of
attempted murder. There was no evidence that defendant specifically intended to kill two
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or more of the boys with a single shot or specifically intended to kill all three boys but
was thwarted from firing the required additional shots by circumstances beyond his
control. Nor was there any evidence that it was either possible, or defendant believed or
had reason to believe it was possible, to kill more than one person with a single shot.
Although the police recovered defendant’s revolver, the prosecution introduced no
evidence of its caliber. Therefore, there was no evidence indicating defendant had the
ability to penetrate two boys with a single high-caliber round fired from a distance of 40
to 50 feet. Thus, there was insufficient evidence at the close of the prosecutor’s case-in-
chief to support an inference that defendant specifically intended to kill all three of the
boys. Accordingly, the trial court should have granted defendant’s section 1118.1 motion
with respect to one of the attempted murder charges. Because defendant’s motion was
addressed to the counts naming Angel as the victim, the trial court should have granted
the motion with respect to count 5.
The Attorney General’s brief on appeal is deficient in part because it relies upon
matters in defendant’s various statements to the police, which were not introduced until
the prosecution’s rebuttal case. Because defendant is challenging the denial of his section
1118.1 motion, not the sufficiency of evidence to support his convictions, we do not
consider evidence introduced after the section 1118.1 motion.
The Attorney General’s brief on appeal also lacks merit to the extent it relies upon
the kill zone theory. Firing two shots of unspecified caliber at three boys from a distance
of 40 to 50 feet was not an application of force so pervasively lethal that it is reasonable
to infer defendant intended to kill everyone in the area at which he fired in order to kill
one or more primary targets.
The Attorney General also relies upon People v. Chinchilla (1997) 52 Cal.App.4th
683 and Smith, supra, 37 Cal.4th 733, both of which concluded the evidence was
sufficient to support two attempted murder convictions where the defendant fired a single
shot at two people who were lined up, one behind the other. Neither case supports the
trial court’s denial of defendant’s 1118.1 motion in this case.
12
In Chinchilla, supra, 52 Cal.App.4th 683, defendant fired a single shot at two
police officers who were crouched, with one “crouched down behind and ‘just above’”
the other. (Id. at p. 687.) Although Chinchilla challenged the sufficiency of the evidence
to support two attempted murder convictions, he “conceded that one shot could support a
conviction on two counts of attempted murder if there was evidence that the shooter saw
both victims.” (Id. at p. 690.) The appellate court concluded it was reasonable to infer
that defendant saw both officers, and held, “Where a defendant fires at two officers, one
of whom is crouched in front of the other, the defendant endangers the lives of both
officers and a reasonable jury could infer from this that the defendant intended to kill
both.” (Id. at p. 691.)
If two of the three boys toward whom defendant fired had been in a single-file line
and defendant had aimed one of his shots at the boy at the front of that line, the evidence
in the present case might support an inference that defendant specifically intended to kill
all three boys. That was not what happened in this case. Either all three boys were
alongside one another or Luis and Allan were alongside one another and Angel was
somewhere behind them. The latter scenario does not mean that Angel was directly
behind Luis or Allan. Angel may have been behind the gap between Luis and Allan.
Accordingly, Chinchilla is distinguishable.
Similarly, in Smith, supra, 37 Cal.4th 733, the defendant fired one .38-caliber shot
at the rear windshield of a car pulling away from a curb. The driver (Smith’s former
girlfriend) testified that defendant fired from directly behind her, and her baby was in an
“infant car seat in the backseat directly behind her.” The bullet struck the driver’s
headrest and barely missed both the driver and the baby. Just before he shot, Smith had
walked up to the open passenger-side front window and looked inside the car, and
defendant admitted in his trial testimony that he had seen the baby in the car. (Id. at
pp. 736–738.) The Supreme Court rejected Smith’s contention that the evidence was
insufficient to support attempted murder convictions with respect to both the driver and
her baby, explaining, “The ballistics evidence established that the large-caliber bullet
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defendant fired into the vehicle from a distance of one car length away missed the mother
and baby by a matter of inches. Defendant’s own testimony established he knew the
baby was in the backseat positioned directly behind the mother, and hence directly in his
line of fire when he fired the shot into the vehicle. When the facts are considered under
the standard of review applicable to this sufficiency of evidence claim, . . . we find the
evidence sufficient to support the jury’s finding that defendant acted with intent to kill the
baby.” (Id. at pp. 746–747.)
Smith is also distinguishable from the present case. Here there was no evidence
that two of the three boys were directly behind one another and in defendant’s direct line
of fire. Nor was there evidence of the caliber of defendant’s revolver, and defendant was
much farther than one car-length away from the boys when he shot toward them.
Given the state of the evidence at the close of the prosecution’s case-in-chief, the
trial court erred by denying defendant’s section 1118.1 motion with respect to count 5.
Accordingly, we reverse the conviction as to that count. This reversal does not affect
defendant’s conviction of assault with a firearm with respect to Angel (count 6) or the
length of defendant’s sentence because the term for count 5 runs concurrently with the
term on count 1.
3. Error in authority for firearm enhancement
We note that both the trial court’s sentencing minute order and the abstract of
judgment indicate that the 20-year firearm enhancement was imposed pursuant to section
12022.53, subdivision (e), which was inapplicable in this case. During the sentencing
hearing, the trial court cited section 12022.53, subdivision (a) as authority for the
enhancement. The correct authority is section 12022.53, subdivision (c). On remand, the
trial court should issue an amended abstract of judgment correcting this error.
DISPOSITION
Defendant’s conviction for the attempted murder of Angel N. (count 5) is reversed
for insufficient evidence and may not be retried. The trial court’s implied findings upon
the Penal Code section 667, subdivision (a) and strike (§§ 667, subds. (b)–(i), 1170.12)
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allegations are reversed and the cause is remanded for a new trial upon those allegations.
The judgment is otherwise affirmed. The court is directed to issue an amended abstract of
judgment that includes citation of Penal Code section 12022.53, subdivision (c) as
authority for the 20-year firearm enhancement to defendant’s sentence.
NOT TO BE PUBLISHED.
MILLER, J.*
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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