People v. Pink CA5

Filed 6/9/22 P. v. Pink 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F082271
Plaintiff and Respondent,
(Super. Ct. No. BF150965C)
v.

DVONTAE LAROME PINK, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Scott Concklin, 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, Kenneth N. Sokoler and Sean
M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
 INTRODUCTION
In 2014, a jury convicted appellant Dvontae Larome Pink of numerous crimes
following separate shootings in 2013. His convictions included first degree murder (Pen.
Code, § 187, subd. (a);1 count 8); attempted first degree murder (§§ 664/187, subd, (a);
count 2); discharging a firearm from a vehicle at a person (§ 26100, subd. (c); count 1);
shooting at various occupied vehicles (§ 246; counts 4, 5, 6 and 9); and conspiracy to
commit murder (§ 182, subd. (a)(1); count 14). The jury found true that appellant
committed these crimes to benefit a criminal street gang, and numerous firearm
enhancements were also found true. As stated by the trial court, appellant received an
aggregated sentence of “life without the possibility of parole [LWOP], plus 25 years to
life, plus 15 years to life, plus 25 years to life, plus 32 years to life, plus 27 years to life,
plus 27 years to life, plus 27 years to life, plus seven years.”
In 2017, this court issued an opinion in which we affirmed much of appellant’s
judgment. (People v. Pink (May 19, 2017, F070488) [nonpub. opn.] [opn. mod. June 19,
2017].) However, based on insufficient evidence, we reversed a conviction for receiving
a stolen vehicle (§ 496d, subd. (a); count 7). Based on instructional error, we also
reversed a conviction for carrying a loaded firearm as an active street gang member
(§ 25850, subd. (c)(3); count 12). Finally, we agreed with the parties that clerical errors
appeared in the indeterminate abstract of judgment. We remanded this matter for
resentencing, and we instructed the court to declare whether it intended to impose
concurrent or consecutive sentences. (People v. Pink, supra, F070488.)
On March 16, 2018, appellant was resentenced. He again received LWOP for the
murder, along with numerous consecutive indeterminate terms. Appellant filed a second
appeal in this court.

1 All future statutory references are to the Penal Code unless otherwise noted.

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 In 2020, we issued an opinion in which we agreed with the parties that the trial
court had imposed improper sentences in counts 1 and 2. In count 1 (discharging a
firearm from a vehicle at a person), the court misspoke and imposed a life sentence when
a determinate sentence was required. In count 2 (attempted first degree murder), the gang
enhancement and the firearm enhancement were impermissibly added together, which
resulted in an improper parole eligibility period in that count. We remanded for
resentencing and directed the court to address another error appearing in the abstract of
judgment. We also directed the trial court to declare whether or not it would strike or
dismiss any of the firearm enhancements pursuant to Senate Bill No. 620 (2017-2018
Reg. Sess.). We otherwise affirmed appellant’s judgment. (People v. Pink (Aug. 7,
2020, F077240) [nonpub. opn.].)
In January 2021, appellant was resentenced. In the present appeal, the parties
agree that sentencing errors again occurred, and other errors appear in the indeterminate
abstract of judgment. The parties assert that another remand is required for a third
resentencing. We agree that errors occurred, but we decline to remand this matter.
Instead, we will modify the judgment and direct the trial court to issue amended abstracts
of judgment. (See § 1260 [appellate court may reverse, affirm, or modify a judgment, or
may remand for further proceedings “as may be just under the circumstances”].) As
modified, we will affirm.
BACKGROUND
Because the issues raised on appeal deal with sentencing, we provide only a brief
overview of the trial evidence. The prosecution established that, in 2013, three separate
shootings occurred in Bakersfield, California: (1) a “drive-by” in the parking lot of Roy’s
Market on February 6; (2) the homicide of Floyd Beam, Jr. outside Roy’s Market on
February 10; and (3) a shooting at a family gathering on March 3 about a mile from
Roy’s Market at a particular residence. (People v. Pink, supra, F070488.)

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 Appellant was charged with these crimes along with codefendants Wendall Keith
Allen, Jimmy Lee Baker, and Trevonte Shevelle Williams. The prosecution established a
conspiracy among the codefendants, who were all identified as Country Boy Crip (CBC)
gang members. A fellow CBC member, Devontay Garrett, acting on behalf of law
enforcement, had secretly recorded Baker and Williams speaking about these shootings,
and portions of the recordings were introduced into evidence at trial. Based on
Williams’s statements, the evidence showed that appellant participated in the drive-by
shooting. Based on Baker’s statements about Beam’s murder, along with circumstantial
evidence linking appellant with Baker, the evidence established that appellant
participated in Beam’s murder. Evidence suggested these shootings were done as gang
retaliation for the killing of another CBC member, Charles Bell. Appellant was tried
alone, and he was convicted of crimes involving the drive-by shooting and Beam’s
murder, but acquitted of the charges regarding the shooting at the residence. (People v.
Pink, supra, F070488.) Appellant’s sentence is broken down as follows:
I. Charges Associated with the February 6, 2013, Drive-By Shooting.
A. Count 1.
For count 1, appellant was found guilty of discharging a firearm from a vehicle at
a person in violation of section 26100, subdivision (c). The jury found true a gang
enhancement (§ 186.22, subd. (b)(1)) and two firearm enhancements (§§ 12022.53,
subds. (c) & (e)(1), 12022.53, subds. (d) & (e)(1)). (People v. Pink, supra, F070488.)
At the 2021 resentencing, the court imposed an upper term of seven years, which
was enhanced by 20 years for one firearm enhancement (§ 12022.53, subds. (c) & (e)(1))
and further enhanced by 25 years to life for the other firearm enhancement (§ 12022.53,
subd. (d) & (e)(1)). An additional five-year gang enhancement (§ 186.22, subd. (b)(1))
was imposed.2 This sentence was stayed pursuant to section 654.

2 At the original 2014 sentencing, the trial court did not impose sentences for the
firearm enhancements which the jury found true in count 1. Instead, only a gang

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 B. Count 2.
For count 2, appellant was found guilty of attempted first degree murder in
violation of sections 664, 187, subdivision (a), and 189. A gang enhancement (§ 186.22,
subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)) were found
true. (People v. Pink, supra, F070488.) At the 2021 resentencing, appellant was
sentenced to prison for 15 years to life for this conviction, which was enhanced by 25
years to life for the firearm.
C. Counts 4, 5 and 6.
For counts 4, 5 and 6, appellant was found guilty of shooting at occupied vehicles
in violation of section 246. The jury found true gang enhancements (§ 186.22, subd.
(b)(1)) in each count. For count 4, a firearm enhancement was found true under section
12022.53, subdivisions (d) and (e)(1). For counts 5 and 6, a firearm enhancement was
found true under section 12022.53, subdivisions (c) and (e)(1). (People v. Pink, supra,
F070488.) At the 2018 resentencing, appellant received 32 years to life in count 4. He
was sentenced to 27 years to life in count 5. Finally, the court imposed a sentence of 27
years to life in count 6. (People v. Pink, supra, F077240.) At the 2021 resentencing, the
court did not revisit these counts.
II. Charges Associated with Beam’s Homicide on February 10, 2013.
A. Count 8.
For count 8, appellant was found guilty of first degree murder for Beam’s
homicide (§§ 187, subd. (a)/189). The jury found true a gang enhancement (§ 186.22,
subd. (b)(1)) and a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)). Finally, the
jury found true that the murder was committed while appellant was an active participant

enhancement of five years was added to this sentence. (People v. Pink, supra, F070488.)
Likewise, at the 2018 resentencing, the trial court did not impose sentences for these
firearm enhancements in count 1, and only a gang enhancement was imposed. (People v.
Pink, supra, F077240.)

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in a criminal street gang and done to further the gang’s activities (§ 190.2, subd. (a)(22)).
(People v. Pink, supra, F070488.) At the 2018 resentencing, appellant received LWOP
for this murder, plus 25 years to life for the firearm enhancement. (People v. Pink, supra,
F077240.) At the 2021 resentencing, the court did not revisit this count.
B. Count 9.
For count 9, appellant was found guilty of shooting at an occupied vehicle during
Beam’s homicide (§ 246). The jury found true a gang enhancement (§ 186.22, subd.
(b)(1)) and a firearm enhancement (§ 12022.53, subds. (c) & (e)(1)). (People v. Pink,
supra, F070488.) At the 2018 resentencing, appellant received a sentence of 27 years to
life. (People v. Pink, supra, F077240.) At the 2021 resentencing, the court did not
revisit this count.
C. Count 14.
For count 14, appellant was found guilty of conspiracy to commit murder in
violation of section 182, subdivision (a)(1). The jury found true a gang enhancement
(§ 186.22, subd. (b)(1)) and two firearm enhancements (§§ 12022.53, subds. (c) & (e)(1),
12022.53, subds. (d) & (e)(1)). (People v. Pink, supra, F070488.) At the 2018
resentencing, appellant received a term of 25 years to life, which was increased by 20
years and 25 years to life, respectively, for the firearm enhancements. This sentence was
stayed. (People v. Pink, supra, F077240.) At the 2021 resentencing, the court did not
revisit this count.
III. A Miscellaneous Charge, Count 13.
For count 13, appellant was found guilty of participating in a criminal street gang
in violation of section 186.22, subdivision (a). The jury found true that he used a firearm
during this offense (§ 12022.5, subd. (a)). (People v. Pink, supra, F070488.) At the 2018
resentencing, appellant received an upper prison term of three years, which was increased

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by 10 years for the firearm enhancement. This sentence was stayed. (People v. Pink,
supra, F077240.) At the 2021 resentencing, the court did not revisit this count.
DISCUSSION
I. The Judgment is Modified to Reflect a Life Sentence in Count 2, with a
Sentencing Enhancement of 25 Years to Life.
The parties agree that the trial court again imposed an unauthorized sentence in
count 2 (attempted first degree murder). At the 2021 resentencing, appellant was
sentenced in count 2 to prison for 15 years to life, which was enhanced by 25 years to life
for the firearm. The court clarified that appellant was eligible for parole in count 2 after
serving a minimum term of 25 years in state prison.
The indeterminate abstract of judgment erroneously reflects that appellant was
sentenced to 40 years to life in count 2 with the possibility of parole. In addition, this
abstract imposes an additional 25 years to life for the firearm enhancement. Thus, the
abstract erroneously states that appellant is not eligible for parole in count 2 until he has
served a minimum of 65 years. Appellant’s sentence in count 2 must be modified.
Attempted murder is punishable by a determinate term of five, seven or nine years.
(§ 664, subd. (a).) When, as here, a defendant is guilty of attempted first degree murder,
the sentence is imprisonment for life with the possibility of parole. (Ibid.)
Seven years is the minimum parole eligibility period for any undesignated life
term. (§ 3046, subd. (a)(1).) However, the gang enhancement (§ 186.22, subd. (b)(1))
which the jury found true in count 2 extends appellant’s minimum parole eligibility to 15
years. (§ 186.22, subd. (b)(5).) Section 186.22, subdivision (b)(5), is an alternate penalty
provision that applies to any gang-related felony that is punishable by life imprisonment.
(People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.) This provision is not a sentence
enhancement for a particular term of years.3 (People v. Jefferson, supra, 21 Cal.4th 86,

3 “A sentence enhancement is ‘an additional term of imprisonment added to the
base term.’ ” (People v. Jefferson (1999) 21 Cal.4th 86, 101.) In contrast, a 15-year

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101 [the 15-year minimum term prescribed by former § 186.22, subd. (b)(4) is not a
sentence enhancement]; see also People v. Johnson (2003) 109 Cal.App.4th 1230, 1237;
People v. Montes (2003) 31 Cal.4th 350, 353, fn. 3 [“(§ 186.22, subd. (b)(5)) is properly
characterized as an alternate penalty provision”].) As such, because appellant committed
attempted first degree murder, the correct sentence in count 2 is life with the possibility
of parole. (§ 664, subd. (a).) Due to the jury’s true finding regarding the gang
enhancement, appellant has a minimum parole eligibility of 15 years. (§ 186.22, subd.
(b)(5).)
The jury also found true that appellant was a principal in the premeditated
attempted murder, and he intentionally and personally discharged, and personally used a
firearm, that proximately caused great bodily injury to a person other than an accomplice
(§ 12022.53, subds. (d) & (e)(1)). Under this firearm enhancement, appellant shall be
punished “by an additional and consecutive term of imprisonment in the state prison for
25 years to life.” (§ 12022.53, subd. (d).) Because the jury found that appellant
personally used and discharged a firearm in the commission of the attempted murder,
both the enhancement under section 12022.53 subdivision (d), and the penalty provision
under section 186.22, subdivision (b)(5), could be imposed in count 2. (§ 12022.53,
subd. (e)(2).) However, section 186.22, subdivision (b)(5), will have no practical effect
on appellant’s sentence because it is subsumed by the greater term.4 (People v.
Lopez (2005) 34 Cal.4th 1002, 1009 [the parole eligibility date under § 186.22, subd.
(b)(5) is trumped by any greater penalty or longer period of imprisonment under another
section of law].) The Board of Prison Terms, however, may consider the jury’s true
finding for the gang enhancement as a factor when determining appellant’s release date,

minimum parole eligibility period for a gang enhancement “is not an ‘additional term of
imprisonment’ and it is not added to a ‘base term.’ ” (Ibid.)
4 Respondent concedes that the 15-year minimum eligible parole date from the gang
enhancement is subsumed by the 25-year firearm enhancement.

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even if it does not actually extend his minimum parole date. (People v. Lopez, supra, 34
Cal.4th at p. 1009.)
We decline to remand this matter for resentencing. Instead, we have discretion to
modify the judgment. (See § 1260 [appellate court may reverse, affirm, or modify a
judgment, or may remand for further proceedings “as may be just under the
circumstances”].) In People v. Alford (2010) 180 Cal.App.4th 1463, 1473, the appellate
court exercised its discretion to modify a judgment where a new sentencing hearing
would not have changed the defendant’s actual prison time, and thus the “futility and
expense” of remand “militate[d] against it.” The same reasoning applies here. In
addition, we may correct clerical errors appearing in an abstract of judgment. (People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
We modify appellant’s sentence in count 2 to that of life with the possibility of
parole, with an additional and consecutive term of imprisonment in the state prison for 25
years to life. We strike that portion of the indeterminate abstract of judgment at
paragraph 6.c. that indicates appellant was sentenced to 40 years to life in count 2. As
modified, appellant will be eligible for parole in count 2 after serving a minimum of 25
years in state prison, which complies with the trial court’s oral pronouncement of
judgment. We will direct the trial court to prepare an amended abstract that reflects these
modifications. The court shall note at paragraph 12 of the amended indeterminate
abstract that the parole ineligibility period in count 2 is extended by 15 years pursuant to
section 186.22, subdivision (b)(5). This will alert prison officials to consider the jury’s
true finding for the gang enhancement as a factor when determining appellant’s release
date, even if it does not actually extend his minimum parole date. (See People v. Lopez,
supra, 34 Cal.4th at p. 1009.)

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II. The Indeterminate Abstract of Judgment must be Amended for Count 8.
The parties agree, as do we, that the indeterminate abstract of judgment
erroneously lists an extra sentence for the conviction in count 8.
At the 2018 resentencing, appellant received LWOP for the murder in count 8,
plus 25 years to life for the firearm enhancement. (People v. Pink, supra, F077240.) At
the 2021 resentencing, the court did not revisit this sentence.
The indeterminate abstract correctly states that the sentence for count 8 is LWOP
(marked at paragraph 4 on the abstract). The abstract also properly lists the firearm
enhancement for this count. However, the abstract also improperly states that appellant is
to serve 25 years to life in count 8 (marked at paragraph 6.b. on the abstract).
We strike that portion of the indeterminate abstract of judgment which states that
appellant was sentenced to “25 years to Life” on count 8. We will direct the trial court to
prepare an amended abstract that reflects this modification.
III. The Firearm Enhancements in Count 1 must be Stricken.
For count 1, appellant was found guilty of discharging a firearm from a vehicle at
a person in violation of section 26100, subdivision (c). The jury found true a gang
enhancement (§ 186.22, subd. (b)(1)) and two firearm enhancements (§§ 12022.53,
subds. (c) & (e)(1), 12022.53, subds. (d) & (e)(1)). (People v. Pink, supra, F070488.)
At both the original sentencing in 2014 and the resentencing in 2018, the trial
court misspoke and erroneously imposed a term of seven years to life in count 1 when a
violation of section 26100, subdivision (c), results in a determinate prison sentence of
three, five, or seven years. (§ 26100, subd. (c).) At both of the prior sentencings, the
court imposed an additional consecutive sentence of five years for the gang enhancement.
In both instances, the sentence in count 1 was stayed. At no time during the prior two
sentencings did the court impose any additional prison time in count 1 based on the
firearm enhancements. (People v. Pink, supra, F070488; People v. Pink, supra,
F077240.) In our 2020 opinion, the court’s sentencing error in count 1 came to our

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attention, and we remanded the matter for the court to impose a proper determinate
sentence. (People v. Pink, supra, F077240.)
At the 2021 resentencing, the court imposed an upper determinate term of seven
years in count 1. The court again imposed an additional five years for the gang
enhancement (§ 186.22, subd. (b)(1)). For the first time, however, the court also imposed
prison time for the firearm enhancements. Appellant’s sentence was enhanced by 20
years for one firearm enhancement (§ 12022.53, subds. (c) & (e)(1)) and further enhanced
by 25 years to life for the other firearm enhancement (§ 12022.53, subds. (d) & (e)(1)).
The sentence in count 1 was stayed pursuant to section 654. The court gave no reason for
imposing time on these firearm enhancements.
The parties agree, as do we, that the first firearm enhancement imposed in count 1
is unauthorized. The plain language of section 12022.53 authorizes enhancements under
subdivision (c) only for those felonies enumerated in subdivision (a). Appellant’s
sentence in count 1 for violating section 26100, subdivision (c), does not qualify for
enhancement. (§ 12022.53, subds. (a) & (c).) As such, the first firearm enhancement that
increased appellant’s sentence by 20 years (§ 12022.53, subds. (c) & (e)(1)) must be
struck.
Appellant argues that the second firearm enhancement in count 1 must also be
stricken, in part, because the trial court increased his sentence following a successful
appeal. Respondent does not comment on this aspect of appellant’s claim. We agree
with appellant that the second firearm enhancement must also be stricken.
“When a defendant successfully appeals a criminal conviction, California’s
constitutional prohibition against double jeopardy precludes the imposition of more
severe punishment on resentencing.” (People v. Hanson (2000) 23 Cal.4th 355, 357;
People v. Price (1986) 184 Cal.App.3d 1405, 1413 (Price).) However, in People v.
Serrato (1973) 9 Cal.3d 753 (overruled on another point in People v. Fosselman (1983)
33 Cal.3d 572, 583, fn.1), the California Supreme Court set out an exception to this

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general rule. “The rule is otherwise when a trial court pronounces an unauthorized
sentence. Such a sentence is subject to being set aside judicially and is no bar to the
imposition of a proper judgment thereafter, even though it is more severe than the
original unauthorized pronouncement.” (People v. Serrato, supra, 9 Cal.3d at p. 764.)
Price is instructive. There, the trial court initially sentenced the defendant to a
prison term of 35 years for convictions of sex offenses and robbery. (Price, supra, 184
Cal.App.3d at p. 1407.) After a successful appeal, the matter was remanded due to
sentencing errors and the trial court imposed a term of 50 years. (Ibid.) The Price court
held that some of the errors in the first sentencing resulted in an unauthorized sentence,
which could be corrected on remand. (Price, supra, at pp. 1411–1412.) However, at
resentencing the trial court also changed the sentence on one of the robbery counts from a
middle term to an upper term, and ran the sentence on the other robbery count
consecutively. (Id. at p. 1413.) Price held that these increases in the sentence were not
permissible because the sentences on the robbery counts had not been challenged on
appeal and the changes did not correct any illegality in the original sentence. (Ibid.) The
appellate court noted that those portions of a sentence unaffected by any illegality cannot
be used to increase a punishment at resentencing following a successful appeal. (Ibid.)
In this matter, adding the firearm enhancements in count 1 did not correct a
previous illegality in the original sentence. Instead, at both the 2014 sentencing and the
2018 resentencing, the trial court misspoke and imposed an indeterminate term in count 1
when a determinate sentence was required. At both prior sentencings, the court imposed
additional prison time because of the gang enhancement in this count, but it never
imposed any additional time based on the firearm enhancements. (People v. Pink, supra,
F070488; People v. Pink, supra, F077240.) Under these circumstances, these firearm
enhancements cannot now increase appellant’s sentence in count 1 following his
successful appeal. Accordingly, it is proper to strike both firearm enhancements imposed
in count 1. We need not, however, remand this matter for resentencing because the trial

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court otherwise imposed the maximum possible term in count 1. Consequently, we will
order the abstract of judgment to be amended. (See Price, supra, 184 Cal.App.3d at
p. 1413.)
IV. The Trial Court must Issue a Determinate Abstract of Judgment.
Appellant notes that, after the 2021 resentencing, the trial court only issued an
indeterminate abstract of judgment (on two forms) to list his convictions and sentences.
Appellant requests that his determinate sentence in count 1 be reflected on a determinate
abstract of judgment. Respondent does not comment on this request.
We agree with appellant that the trial court must issue a determinate abstract of
judgment to reflect the determinate sentences which were imposed. Our review of the
record has disclosed that, in addition to the determinate sentence imposed in count 1,
appellant also received a determinate sentence in count 13. Both of these determinate
sentences are erroneously listed on the indeterminate abstract of judgment. We will
direct the trial court to remove these counts from the indeterminate abstract of judgment
and record them on a determinate abstract of judgment (form CR-290). This will ensure
that the abstracts of judgment accurately reflect the oral pronouncement of judgment.
(People v. Mitchell, supra, 26 Cal.4th at p. 185.)
DISPOSITION
Appellant’s judgment is modified as follows:
In count 1, the firearm enhancements imposed under section 12022.53 are
stricken.
In count 2, appellant is sentenced to life with the possibility of parole. Appellant
shall be punished by an additional and consecutive term of imprisonment in the state
prison for 25 years to life (§ 12022.53, subd. (d)).5

5 To assist the court clerk below, we note that the life sentence in count 2 should be
reflected in box 5 on the amended indeterminate abstract of judgment. The firearm
enhancement in count 2 should be listed in box 2 (as it was before). The “40 years” that

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 The term “25 years to Life” for count 8 appearing in the indeterminate abstract of
judgment at box 6.b. is stricken.
The trial court shall remove any reference to counts 1 and 13 from the
indeterminate abstract of judgment and record those convictions and sentences, including
imposed enhancements, on a determinate abstract of judgment (form CR-290).
The trial court shall prepare abstracts of judgment that accurately reflect these
modifications. The court shall forward the amended indeterminate abstract of judgment,
along with the accompanying determinate abstract of judgment, to the appropriate
authorities. In all other respects, the judgment as modified is affirmed.

is currently listed for count 2 in box 6.c. must be stricken. It should be noted at
paragraph 12 of the amended indeterminate abstract that the parole ineligibility period in
count 2 is extended by 15 years pursuant to section 186.22, subdivision (b)(5).

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