Filed 3/23/21 P. v. Acosta CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDY BRI AN ACOSTA

,

Defendant and Appellant. B 306034

(Los Angeles County

Super. Ct. No. B A 4 51969

- 01 )

APPEAL from a judgment of the Superior Court of

Los Angeles County, Henry J. Hall , Judge. Affirmed.

Robert L.S. Angres , under appointmen t by the Court of

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________2 Andy Brian Acosta appeals from the judgment entered

following a resentencing hearing ordered by this court in Acosta’s

prior appeal ( P

eople v. Acosta (Nov. 18, 2019, B287760) [nonpub.

opn.] ) . No arguable issues were identified by Acosta’s appointed

appellate counsel after h is review of the record . We also have

identified no arguable issues after our own independent review of

the record

. W e affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Acost a wa s charge d i n a n i n formatio n wit h th e firs t degree

murde r o f Dann y Che a (Pen. Code, § 187

, subd

. (a) ; 1 cou n t 1)

, the

attempted premeditate d mu r d e r o f Ambe r Campo s (§ § 187

, subd

. (a )

, 664; coun t 2)

, assaul t wit h a firear m o f Abe l R

. ( § 245

, subd

. (a)(2); coun t 3)

, unlawfu l possessio n o f a firear m ( § 29800

, subd

. (a)(1); coun t 4) an d shoo t in g a t a n occup i e d moto r vehicl e
( § 246 ; count 5)

. The i nformatio n a l lege d Acost a had committe d

all five offense s fo r th e benefi t of a crimina l stree t gang

. ( § 186.22

, subd

. (b) .) The informatio n als o speciall y allege d a s t o

count s 1 an d 5 Acosta had personall y an d in t entionall y
discharge d a firear m causin g great bodily injur y or dea t h

( § 12022.53

, subd

. (d) ) , as to coun t 2 he had personall y an d

in t e ntionally discha r ged a firea r m ( § 12022.53

, subd

. (c) ) and as

t o coun t 3 he had personal l y use d a firearm ( § 12022.5, subd. (a)).

2. The Shooting

In October 2016 Chea and Campos we r e in a long

- term

romanti c relationship. Chea was a member of the Lin c oln Heights

criminal street gang. On Oc t ob e r 24, 2016 Chea drove Campos to

pick up Campos’s son

, Abel

, from e l emen t ary school. Inside the

1 Statutory references are to this code.3

school Campos saw Jason Avalos, a member of the Eastlake

criminal street gang. Avalos gave Campos an “ ug l y look[ ],” then

made a t e lephone call. When Campos returned to the car with

Abel, she told Chea she had seen Avalos. The three left for

Campos’s home. Chea was driving; Campos sat in the front

passenger seat next to him; Abel sat in the rear seat behind

Chea.

While the three we r e stopped at an in t e rsection, a car
driven by Acosta pulled up on t he passenger side. Campos saw

Acosta holding an automatic weapon. (Campos subsequently

identified Acosta as the shooter in a phot ographic lineup.) She

did not see anyone else in the car. Acosta fired two or three sho t s

, killing Chea. Before he was shot, Chea told Campos that “Rana

from Eastlake” was in the car next to them. Several Los Angeles

Police Officers who had contact wit h Acosta documented that he

had admitted being a member of the Eastlake criminal street

gang and used the name “Rana.”

3. The Verdict and Sentence

Following a six

- day trial th e jur y convicte d Acost a o n al l

counts and found the criminal street gang and fi rearm

enhancements tru e. A cost a admitte d th e allegatio n he had

suffere d a prio r felon y convictio n fo r whic h h e s e rve d a prison

term

. Th e tria l cour t sentence d Acost a to what it characterized as

a life term with 80 years minimum parole eligibility plus a

determinate term of 44 years eight months. F o r th e first degre e

murde r o f Che a , the court imposed an indeterminate state prison

term of 2 5 year s t o life

, plu s 2 5 year s t o lif e for the firea r m4

enhan c ement

. 2 Fo r th e attempte d premeditate d murde r o f

Campos

, the cour t sentence d Acost a t o a lif e ter m w i t h 15

- yea r

minimu m pa r o le eligibilit y, plu s 2 0 year s fo r th e firear m

enhancemen t. Selecting the aggravated assault of Abel (count 3)

for the base determinate term, the court imposed the upper term

of four years plus the upper term of 10 years for the firearm

enhancement and 10 years for the gang enhancement. It

imposed a consecutive term of eight months (one

- third the middle

term of two years ) for unlawful possession of a firearm and

dismissed the gang enhancem ent in the interest of justice.

Finally, the court imposed a consecutive life term with a 15

- year

minimum parole eligibility under section 186.22,

subdivision (b)(4), for shooting at an occupied vehicle for the

benefit of a criminal street gang. The cour t declined to stay the

sentence o f this court under section 654, rea s onin g

, “ C onsecutiv e

sentencin g i s warran t e d b y the fac t tha t w e hav e a separat e

innocen t victim

, ” noting in part Chea’s car crashed into an

occupied restaurant after he had been shot. 3

4. Acosta’s First Appeal

On appeal we agreed with Acosta that substantial evidence

did not support the court’s application of the multiple victim

2 The court did not imp o s e th e 15

- yea r minimu m parol e eligibilit y ter m unde r section 186.22

, subdivisio n (b)(5)

, for the

gang enhancement, findin g, incorrectly, i t wa s supersede d b y th e

25

- year

- to

- lif

e sentenc e f

or firs t degre e mu r der. (See Peopl e v

. Lope z (2005) 3 4 Cal.4 t h 100 2

, 1009 .) We directed the court on

remand to impose the 15

- year parole eligibility term or to strike
the enhancement (§ 1385, subd. (a)) or the punishment for the

enhancement (§ 186.22, subd. (g)).

3 Th e cour t struc k th e prior priso n term enhancement

.5

exception for shooting at an occupied vehicle because the conduct

u nderlyin g th e murder

, attempte d murder an d a ggravated

assault offenses was an indiv i sible cou r se of conduct directed

against

, a t most

, Chea

, Campos and Abel. Even though Chea’s

car crashed after he was shot, there was insufficient evidence

anyone other than the three occupants of the vehicle had be en

victimized by the shooting.

We also agreed with Acosta

— and the Attorney General

conceded

— that under People v. Rodriguez (2009) 47 Cal.4th 501,

508

- 509, the trial court had erred in imposing both the 10

- year

firearm enhancement under section 12022.5, sub division (a), and

a 10

- year gang enhancement under section 18 6 .22,

subdivision (b)(1)(C), on the aggravated assault count. As was

true in Rodriguez , Acosta was subject to the 10

- year punishment

for a violent felony committed for the benefit of a criminal street

gang under section 186.22, subdivision (b)(1)(C), only because his

use of a firearm had been charged and proved under

section 12022.5. Accordingly, section 1170.1, subdivision (f),

required the court to impose only one firearm

- based enhancement

for a single offense.

We affirmed Acosta’s convictions, 4 reversed his sentence

and remanded with directions to the trial court to exercise its

discretion whether t o impo s e on count 3 th e firearm enhan c emen t

unde r sectio n 12022.5

, subdivisio n (a)

, o r th e gang enhan c emen t

unde r sectio n 186.22

, subdivisio n (b)(1)(C) , and to stay the

sentence pursuant to section 654 on one of counts 1, 2, 3 or 5

.

4 We found the trial court had disclosed all relevant material

at the Pitchess hearing.6 5. Resentencing

On remand the trial court

, stating its intention to impose

the maximum sentence authorized by law, 5 i mposed what it

characterized as a 23

- year determinate state prison term plus life

with an 80

- year minimum eligibility for parole. The court

sentenced Acosta to the upper term of three years for unlawful

possession of a firearm (count 4), dismissing the ga ng

enhancement on that count. The court imposed the upper term of

four years for aggravated assault (count 3 ), plus the upper term,

10

- year firearm enhancement, striking the gang enhancement, as

directed by our decision in the first appeal , pursuant to

se ction 1170.1, subdivision (f). The court then stayed the 14

- year

aggregate sentence on count 3 pursuant to section 654,

explaining it was going to impose the sentence for shooting at an

occupied vehicle for the benefit of a criminal street gang

(count 5), which included a life term.

As to the murder count, the court again imposed a 25

- year

to

- life indeterminate term, now with a 15

- year minimum parole

eligibility for the gang enhancement, plus 25 years to life for the

firearm enhancement. For attempted mu rder the court imposed

a consecutive life term with a 15

- year minimum parole eligibility,

5 Before imposing sentence the court stated, “The

circumstances of the shooting in this case, which essentially was

the execution of an unsuspecting man and the attac k on a young

woman with a small child, from the evidence committed for

nothing more apparently than the fact the victims had the

audacity to pick up a small child at a public school in the
territory of a rival gang. The senselessness and wantonness of

thi s crime as demonstrated by the facts of this case render the

defendant a continuing danger to the community and demand his

removal from the community for as long as possible.”7

plus a determin at e 20

- year term for the firearm enhancement.

And a third consecutive life term with a 15

- year minimum parole

eligibility was imposed for shooting at an occupied vehicle.

The court ordered the $300 restitution fine it had

previously imposed stayed until the People provide d proof of

Acosta’s ability to pay and waived all other fees and assessments.

Acosta filed a timely notice of appeal.

DISCUSSION

We appointed counsel to represent Acosta on appeal. After

reviewing the record, counsel filed a brief raising no issues.

Appointed counsel advised Acosta on September 3, 2020 that he

may personally submit any contentions or issue s he wanted the

court to cons ider. We received no response from appellant.

We have examined the record and are satisfied appellate

counsel for Acosta has complied with counsel’s responsibilities

and there are no arguable issues. ( Smith v. Robbins (2000)

528 U.S. 259, 277

- 284; Peop le v. Kelly (2006) 40 Cal.4th 106, 118

- 119; People v. Wende (1979) 25 Cal.3d 436, 441

- 442.)

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.