People v. Gonzales (2001)

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[No. B137494. Second Dist., Div. Four. Mar. 14, 2001.]

THE PEOPLE, Plaintiff and Respondent, v. STEVEN GONZALES et al., Defendants and Appellants.

[Opinion certified for partial publication. fn. * ]

[Modification of Opinion (87 Cal. App. 4th 1; 104 Cal.Rptr.2d 247) on denial of petition for rehearing.]

THE COURT.- fn. ‡

It is ordered that the opinion filed herein on February 13, 2001, be modified in the following particulars:

1. On page 1 [87 Cal. App. 4th 1, advance report], the footnote is modified to read:

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, IV, and V of the Discussion.

2. On page 3, the second full paragraph [87 Cal. App. 4th 6, advance report, 1st par.] is modified to read:

In the unpublished portion of the opinion, we address defendants' challenge to the admission of testimony by an expert that gang members would necessarily be armed when traveling outside their territory and would use the gun if they were losing a fight with rivals. We conclude that the testimony regarding use of a gun was erroneously admitted, but that the error was harmless. We also discuss defendants' sentencing arguments which are not based on the federal and state constitutions in this portion of the opinion. We conclude that the trial court erred in imposing an additional two-year street gang enhancement under section 186.22 on Michael and Steven because they did not personally use a firearm in the commission of the [87 Cal. App. 4th 1378b] offense. Jimenez is subject to the section 186.22 enhancement because he did use a weapon. We also find merit in Michael's argument that the trial court erred in imposing an unspecified amount of direct victim restitution. We remand for resentencing as to each defendant.

3. On page 3, the third and fourth full paragraphs [87 Cal. App. 4th 6, advance report, 1st par.] are deleted.

4. On page 24, the last full paragraph [87 Cal. App. 4th 29, advance report, nonpublished portion of pt. IV] is deleted.

5. On page 25, a new section V of the Discussion [87 Cal. App. 4th 19, advance report] is added:

V fn. *

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6. On page 25 [87 Cal. App. 4th 19, advance report], the Disposition is modified to read:

Each defendant's sentence is reversed because of the sentencing errors we have discussed. As to Michael Gonzales, on remand, the trial court shall specify the amount of restitution to be paid. In all other respects the judgments of conviction are affirmed.

7. There is a change in the judgment.

8. Respondent's petition for rehearing is denied.

FN *. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part V of the Discussion.

FN ‡. Before Epstein, Acting P.J., Hastings, J., and Curry, J.

FN *. See footnote ante, page 1378a.