Filed 8/18/21 P. v. Lacroix CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMIAH LACROIX,

Defendant and Appellant.

 B304354

 (Los Angeles County

 Super. Ct. No. GA102302)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Charlaine F. Olmedo, Judge. Affirmed as 

modified with directions.

Patricia A. Scott, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Scott A. Taryle and 

Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Defendant and appellant Jeremiah Lacroix appeals from 

his conviction of murder and other offenses, raising two 

sentencing issues. The prosecution concedes the errors, and 

contends the court miscalculated the mandatory fees. We agree 

with defendant’s claims of error, modify the judgment, and 

otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

After exchanging words with members of another gang at a 

bar, defendant left the bar and returned with a gun. Hostilities 

were re-engaged, and defendant shot three people, one of them 

fatally. 

Defendant was convicted, after a jury trial, of one count 

each of: (1) second-degree murder (Pen. Code, § 187);

1 (2) 

attempted voluntary manslaughter (§§ 664/192, subd. (a)); (3) 

assault with a semiautomatic firearm (§ 245, subd. (b)); and (4) 

possession of a firearm by a felon (§ 29800, subd. (a)(1)). A 

number of gang (§ 186.22, subd. (b)), firearm (§§ 12022.5, 

12022.53), and great bodily injury (§ 12022.7) enhancements 

were also found true. 

Defendant received an indeterminate term of 15 years to 

life for the murder, plus 25 years to life for the firearm 

enhancement, plus an additional 10 years for the gang 

enhancement. He received a determinate term for the remaining 

offenses. As it pertains to the present appeal, for felon in 

possession, defendant was sentenced to eight months plus one 

year for the gang enhancement. Sentences on some 

enhancements were imposed and stayed. 

1 All further undesignated statutory references are to the 

Penal Code.
3

The court also imposed a $30 court operations assessment

(§ 1465.8), a $40 criminal conviction assessment (Gov. Code, 

§ 70373), a $300 restitution fine (§ 1202.4) and a $300 suspended 

parole revocation fine (§ 1202.45).2 The court stayed the fines 

and fees subject to an ability to pay hearing, if requested. 

Defendant filed a timely notice of appeal. 

DISCUSSION

1. The Gang Enhancement on the Murder Count Must be

Stricken

Section 186.22 provides various gang enhancements, 

depending on the offense to which the enhancement applies. If 

the offense is a violent felony, the defendant shall be punished by 

an additional 10 years in prison. (§ 186.22, subd. (b)(1)(C).) 

However, if the offense is punishable by imprisonment for life,

the formulation differs – the defendant “shall not be paroled until

a minimum of 15 calendar years have been served.” (§ 186.22, 

subd. (b)(5).) A violent felony punishable by imprisonment for life 

falls under subdivision (b)(5) (the 15-year minimum parole 

eligibility) not subdivision (b)(1)(C) (the 10-year enhancement),

even if the gang enhancement results in no increase to the 

defendant’s term. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.)

Defendant contends, the Attorney General concedes, and 

we agree that defendant’s sentence must be modified to strike the 

10-year gang enhancement on his murder conviction, and replace 

it with a 15-year minimum parole eligibility term. (People v. 

Arauz (2012) 210 Cal.App.4th 1394, 1404–1405.)

2 Direct victim restitution of $6,856.44 was ordered at a 

subsequent restitution hearing. 
4

2. The Term for Felon in Possession of a Firearm Must 

Be Stayed

Section 654 prohibits multiple punishments for the same 

act or omission. Defendant contends this statute requires staying 

his sentence for felon in possession of a firearm, as his firearm 

possession was not independent of his other offenses. (See People 

v. Bradford (1976) 17 Cal.3d 8, 22 [when the evidence shows a 

possession only in conjunction with the primary offense, 

punishment for the possession is improper]; People v. Mustafaa

(1994) 22 Cal.App.4th 1305, 1312 [same].) Here, as the trial 

court recognized at sentencing, defendant left the bar and 

returned with a firearm. There was no evidence that he 

possessed it except during the shooting. On appeal, the Attorney 

General concedes that the sentence for possession of a firearm 

must be stayed. We agree.

3. The People Waived Any Error Regarding Fees 

Section 1465.8 provides that an assessment of $40 “shall be 

imposed on every conviction for a criminal offense” to fund court 

operations. Government Code section 70373 likewise provides an 

additional assessment of $30 “shall be imposed on every 

conviction for a criminal offense” for court facilities funding.

Here, the trial court imposed a single set of assessments, 

amounting to $70, rather than assessments for each of the four 

convictions, which would amount to $280. In its respondent’s 

brief, the prosecution for the first time argues this was error. 

Defendant, in reply, argues any error was forfeited by the 

prosecution’s failure to raise it at sentencing. A party may raise 

for the first time on appeal a purely legal claim that does not 

require a factual evaluation. (People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153.) Claims related to these assessments 
5

require a factual evaluation because the fees may not be imposed 

if the defendant lacks the ability to pay. (Ibid.; see also People v. 

Castellano (2019) 33 Cal.App.5th 485, 488–489.) The prosecution 

neither raised this issue at sentencing nor did it pursue the issue 

by means of cross-appeal. We therefore consider it waived. 

DISPOSITION

The judgment is modified as follows: (1) as to count 1, 

murder, the 10-year enhancement under section 186.22, 

subdivision (b)(1)(C) is stricken and a 15-year minimum parole 

eligibility term imposed; and (2) as to count 13, possession of a 

firearm by a felon, the sentence and related enhancement are

stayed pursuant to section 654. The trial court is directed to

prepare a new abstract of judgment reflecting these changes. 

The clerk shall forward the new abstract to the Department of 

Corrections. As modified, the judgment is affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.