P. v. Corona

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Filed 12/28/06 P. v. Corona CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ABRAHAM R. CORONA,
Defendant and Appellant.
A113511
(Mendocino County
Super. Ct. No. 06-6980504)
Abraham R. Corona appeals the sentence imposed following his guilty plea to
second degree burglary (Pen. Code, §§ 459, 460, subd. (b))1 (count two) and unlawful
participation in criminal street gang activity (§ 186.22, subd. (a)) (count three). He also
admitted a gang enhancement in connection with the burglary. (§ 186.22, subd. (b)(1).)
He was sentenced to six years in state prison. He contends the sentencing court
committed Blakely error (Blakely v. Washington (2004) 542 U.S. 296 (Blakely)) and that
his sentence on count three should be stayed pursuant to section 654. We reject the
contentions and affirm.
B ACKGROUND
Since this appeal solely involves claims of sentencing error, a detailed recitation of
facts is unnecessary. According to the probation report, on February 14, 2006, appellant
and four others followed the victim into the victim’s florist business and one of
appellant’s confederates grabbed two gold chains around the victim’s neck. Appellant
1 All undesignated section references are to the Penal Code.

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and the four other suspects then fled. The suspects were identified as Sureño gang
members.
The court imposed the upper three-year term on the count two burglary, a
consecutive three-year midterm on the count two gang enhancement, and a concurrent
two-year midterm on count three.
D ISCUSSION
I. There Was No Blakely Error
Appellant contends the court committed Blakely error by imposing the upper term
on the burglary count based on aggravating facts not determined by the jury beyond a
reasonable doubt, or admitted by defendant, denying him the right to jury trial in
violation of the Sixth and Fourteenth Amendments to the United States Constitution.
Appellant concedes that his argument was rejected by our Supreme Court in People v.
Black (2005) 35 Cal.4th 1238 (Black) and that principles of stare decisis require us to
follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
However, he raises the claim solely to preserve it for federal court review.2
We reject the People’s argument that appellant waived this issue by failing to raise
it below. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089 (Hill)
(upon which the Attorney General relies), who waived a Blakely challenge by failing to
raise it at his sentencing which occurred after Blakely but before Black, appellant was
sentenced after Black, at which point, a Blakely objection would have been futile under
controlling law the court was compelled to follow. (Hill, supra, at p. 1103.) Under these
circumstances, appellant did not waive the issue. (People v. Chavez (1980) 26 Cal.3d
334, 350, fn. 5; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th
780, 784-785.)
2 The United States Supreme Court has granted certiorari in a case presenting this issue.
(Cert. granted sub nom. Cunningham v. California (2006) __ U.S. __ [126 S.Ct. 1329].)

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II. A Section 654 Stay Is Unwarranted
Appellant contends the two-year concurrent term imposed on the count three gang
participation offense should be stayed pursuant to section 654 because it was committed
with the same objective as the burglary. He asks this court to modify his sentence
accordingly.
In imposing the concurrent sentence on count three the court stated, “[I]n
reviewing [California Rules of Court,] rule 4.425 in concurrent versus consecutive terms,
I find that these should be run concurrent because the crimes and the objectives are not
predominantly independent of the offense of Count 3. Participation in the criminal street
gang was the same basis for the intent on the burglary, essentially, and so I think a
concurrent sentence is in the interest of justice in that matter and required by law.”
Appellant contends that the court’s finding that his participation in a gang was “the same
basis for the intent on the burglary” required imposition of a section 654 stay on the count
three sentence term.
Section 654 “prohibits multiple punishment if the defendant commits more than
one act in violation of different statutes when the acts comprise an indivisible course of
conduct having a single intent and objective.” (In re Jose P. (2003) 106 Cal.App.4th 458,
469 (Jose P.).) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’
which were independent of and not merely incidental to each other, he may be punished
for each statutory violation committed in pursuit of each objective, ‘even though the
violations shared common acts or were parts of an otherwise indivisible course of
conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Whether a
defendant entertained multiple criminal objectives presents a question of fact for the trial
court, whose findings will be upheld on appeal if supported by substantial evidence.
(People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Herrera (1999)
70 Cal.App.4th 1456, 1466 (Herrera).)
Herrera held that the defendant’s conviction for gang participation under section
186.22, subdivision (a), was divisible from his attempted murder convictions for purposes
of section 654 because the gang participation charge required “a separate intent and

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objective from the underlying felony committed on behalf of the gang.” (Herrera, supra,
70 Cal.App.4th at p. 1468.) The court explained that section 186.22, subdivision (a), “is
a substantive offense whose gravamen is the participation in the gang itself.” (Herrera,
supra, at p. 1467, fn. omitted, italics in original.) To violate that statute, the defendant
“must necessarily have the intent and objective to actively participate in a criminal street
gang,” but need not “have the intent to personally commit the particular felony . . . .”
(Ibid.)
“The perpetrator of the underlying crime may thus possess ‘two independent, even
if simultaneous, objectives[,]’ thereby precluding application of section 654. [Citation.]”
(Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.) Otherwise, the court noted, the
application of section 654 “would render section 186.22, subdivision (a) a nullity
whenever a gang member was convicted of the substantive crime committed in
furtherance of the gang. ‘[T]he purpose of section 654 “is to insure that a defendant’s
punishment will be commensurate with his culpability.” [Citation.]’ [Citation.] We do
not believe the Legislature intended to exempt the most culpable parties from the
punishment under the street terrorism statutes.” (Ibid., fn. omitted.)
The Sixth District reached a similar conclusion in Jose P., supra, 106 Cal.App.4th
458. In that case, in committing the minor to the California Youth Authority, the court
included in the maximum period of confinement, nine years for the defendant’s
commission of a home invasion robbery, plus 10 years pursuant to the section 186.22,
subdivision (b)(1)(C) gang enhancement, and eight months for the section 186.22,
subdivision (a) gang offense. The minor contended the eight-month term on the gang
crime should be stayed pursuant to section 654. (Jose P., supra, at pp. 468, 470.) The
court reasoned that as in Herrera, given the minor’s history of gang involvement, the
minor’s intent and objective in violating section 186.22, subdivision (a) necessarily must
have been participation in the gang itself, and his intent in committing the robbery was to
take property located in the victim’s home. “Application of the enhancement does not
alter the fact that he must also have had the intent to take the property. While he may
have pursued the two objectives simultaneously, the objectives were nevertheless

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independent of each other. Therefore, section 654 does not bar punishment for both the
gang crime and the robbery.” (Jose P., supra, at pp. 470-471.)
The reasoning and result in Herrera and Jose P. are applicable in the instant case.
The probation report reveals appellant had a tattoo stating “CVC,” which stands for
Crazy Vatos Controllas, consistent with gang membership. A police search of appellant’s
residence turned up photographs of gang members wearing clothing depicting gang signs,
gang writings, clothing with gang signs, a tray containing .38-caliber wadcutter handgun
bullets, and a 20-guage shotgun hidden and wrapped in a sock. One of the other suspects
stated that appellant was a member of the CVC gang. The 19-year-old appellant admitted
to probation that he has been a member of the CVC gang since age 16. The probation
report also stated that appellant has a “serious juvenile criminal history, which has
progressed into adulthood in a very short time.”
Given appellant’s history of gang involvement, his intent and objective in
violating section 186.22, subdivision (a) necessarily must have been participation in the
gang itself, and his intent in committing the burglary was to take property located inside
the florist business. Consequently, the court properly determined that the gang offense
need not be stayed pursuant to section 654.

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D ISPOSITION
The judgment is affirmed.
SIMONS, J.
We concur.
JONES, P.J.
BRUINIERS, J.∗
∗ Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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