Filed 1/21/21 P. v. Campos CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B303422
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA134943
v.
JOEL CAMPOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
BACKGROUND
In 2015 a jury convicted defendant and appellant
Joel Campos of second degree robbery. The jury found true
allegations that Campos personally used a firearm in the
commission of the offense (Pen. Code, § 12022.53, subd. (b))1
and that he committed the crime for the benefit of or at the
direction of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
The trial court sentenced Campos to 23 years in the state prison,
consisting of the midterm of three years for the robbery plus
ten years each for the gun and gang enhancements. In May
2017, we affirmed Campos’s judgment of conviction. (People v.
Campos (May 25, 2017, B264148) [nonpub. opn.] (Campos I).)
On September 30, 2019, Campos filed in the trial court a
pleading entitled “Motion for Modification of Sentence Pursuant
to PC § 1170.1(F), § 12022.5(a), § 12022.53, and § 1385.” The
motion bordered on the unintelligible. Campos contended the
trial court impermissibly imposed consecutive 10-year terms
for the firearm and gang enhancements, in violation of section
1170.1, subdivision (f) and People v. Le (2015) 61 Cal.4th 416 (Le).
He cited Senate Bill No. 620 and the amendments that legislation
made to sections 12022.5 and 12022.53. Campos then discussed
trial courts’ authority to strike prior strikes under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497.2 He also sought
to reargue the facts of his case.3
1 References to statutes are to the Penal Code.
2 There was no allegation in this case that Campos had any
strike priors.
3 For example, Campos stated “a firearm was allegedly seen
in the waistband of his pants.” In fact, according to the probation
officer’s report, the victim told police Campos “removed a
2
On October 22, 2019, the trial court denied Campos’s
motion. The court’s minute order states, “In this matter
judgment is already final and thus sentence cannot be modified.”
Campos appealed and we appointed counsel to represent
him. After examining the record, counsel filed an opening brief
raising no issues and asking this court to “conduct a review
according [to] the procedures set forth in People v. Serrano (2012)
211 Cal.App.4th 496.” Counsel notified Campos that he had filed
a Serrano brief and that Campos could file a supplemental brief.
On October 27, 2020 Campos filed a supplemental brief. Because
Campos filed a supplemental brief, we follow the procedures
set forth in People v. Wende (1979) 25 Cal.3d 436 (Wende) rather
than those in Serrano.
DISCUSSION
Campos’s supplemental brief essentially repeats the
arguments in his “motion for modification,” citing Le and
Senate Bill No. 620. Campos also challenges the sufficiency
of the evidence at trial on the firearm and gang enhancements.
Campos questions how the jury could find the gang enhancement
true “when there is no gang on [victim Juan] Melo’s side.”
Campos says he “has done a lot of growing up” while in prison.
Campos’s contentions are without merit.
Our opinion affirming Campos’s conviction summarized the
facts of his crime. In short, victim Juan Melo left a train station
on his way home from work. Campos approached Melo and asked
him where he was from and why he was wearing a red shirt.
Melo replied he was from “ ‘[n]owhere’ ” and the red shirt was
part of his work uniform. Campos, “using a gun, robbed Melo
of several hundred dollars.” (Campos I.)
stainless steel semi-automatic from his waistband and pointed it
at the victim.”
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Campos told Melo not to call the police or Campos would
shoot him. Melo called the police anyway. In his 911 call,
Melo said “ ‘[i]t look[ed] like [the perpetrator] might’ve been
from Grape Street and, uh, Mexican Grape Street.’ ” Melo told
responding officers that Campos was wearing a purple shirt.
The People’s gang expert testified at trial that the Southside
Watts Barrio Grape gang was a Hispanic criminal street gang
whose members often wore purple clothing. (Campos I.)
Section 12022.53, subdivision (b) provides that “any person
who, in the commission of a felony specified in subdivision (a),
personally uses a firearm, shall be punished by an additional
and consecutive term of imprisonment in the state prison for 10
years.” Robbery is one of the felonies specified in subdivision (a).
(§ 12022.53, subd. (a)(4).) Section 12022.53, subdivision (e)
and its subparts provide that that firearm enhancement applies
to a person who is a principal in a crime, in which a gang
enhancement under section 186.22, subdivision (b) has been
found true, who personally used a firearm in the commission
of the offense. Section 186.22, subdivision (b)(1)(C) provides that
any person convicted of a felony committed for a gang in violation
of that section shall “be punished by an additional term of 10
years” if the felony was a violent felony.
Accordingly, because (1) Campos was the sole perpetrator
of the robbery (and so was by definition a principal), (2) he used
a gun in the robbery, (3) the jury found the gang allegation true,
and (4) robbery is a violent felony, the trial court correctly
imposed consecutive 10-year terms for the firearm enhancement
and the gang enhancement.
Campos misunderstands our Supreme Court’s decision
in Le as well as section 1170.1, subdivision (f). Le applied
the high court’s earlier decision in People v. Rodriguez (2009)
47 Cal.4th 501 that a person’s single act of personally using
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a firearm during the commission of a felony could not be used
both to elevate the offense to a serious or violent felony and
as the basis for a firearm enhancement. (Le, supra, 61 Cal.4th
416.) In other words, when a jury finds true both a use-of-a-
firearm enhancement and a gang enhancement, and the crime
is a violent felony owing to the use of a gun, section 1170.1,
subdivision (f) requires the court to impose only the greater
of the two enhancements. (See Couzens et al., Sentencing
California Crimes (The Rutter Group 2020) ¶ 21:7.)
Here, the felony of which Campos was convicted—robbery
—is not a violent felony owing to the use of a gun. It is a violent
felony whether committed with a weapon or without one. The
Penal Code provisions listed above provide for full consecutive
10-year terms for the gun use and the gang enhancement.
(People v. Brookfield (2009) 47 Cal.4th 583, 590 [“A defendant
who personally uses or discharges a firearm in the commission
of a gang-related offense is subject to both the increased
punishment provided for in section 186.22 and the increased
punishment provided for in section 12022.53.” (Italics omitted.)].)
Campos’s reliance on Senate Bill No. 620 also misses
the mark. Effective January 1, 2018, Senate Bill No. 620
(Stats. 2017, ch. 682, §§ 1-2) amended sections 12022.5 and
12022.53 to give courts discretion in the interest of justice to
strike or dismiss a firearm enhancement. (§§ 12022.5, subd. (c);
12022.53, subd. (h).) Senate Bill No. 620 applies to cases not
yet final on the law’s effective date. (People v. Hargis (2019) 33
Cal.App.5th 199, 209-210; People v. Harris (2018) 22 Cal.App.5th
657, 659, 661-662.) As the trial court noted, Campos’s case was
final before January 1, 2018.
We have conducted an independent review of the entire
record. We are satisfied that Campos’s counsel has fully
complied with his responsibilities and that no arguable issues
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exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende,
supra, 25 Cal.3d at p. 441.)
DISPOSITION
We affirm the trial court’s denial of Joel Campos’s “Motion
for Modification of Sentence.”
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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