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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDY BRIAN ACOSTA,

Defendant and Appellant.

 B306034

 (Los Angeles County

 Super. Ct. No. BA451969-01)

APPEAL from a judgment of the Superior Court of 

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

Robert L.S. Angres, under appointment 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 (People v. Acosta (Nov. 18, 2019, B287760) [nonpub. 

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

appellate counsel after his review of the record. We also have 

identified no arguable issues after our own independent review of 

the record. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Acosta was charged in an information with the first degree 

murder of Danny Chea (Pen. Code, § 187, subd. (a);

1 count 1), the 

attempted premeditated murder of Amber Campos (§§ 187,

subd. (a), 664; count 2), assault with a firearm of Abel R. (§ 245,

subd. (a)(2); count 3), unlawful possession of a firearm (§ 29800,

subd. (a)(1); count 4) and shooting at an occupied motor vehicle

(§ 246; count 5). The information alleged Acosta had committed

all five offenses for the benefit of a criminal street gang.

(§ 186.22, subd. (b).) The information also specially alleged as to

counts 1 and 5 Acosta had personally and intentionally

discharged a firearm causing great bodily injury or death

(§ 12022.53, subd. (d)), as to count 2 he had personally and

intentionally discharged a firearm (§ 12022.53, subd. (c)) and as

to count 3 he had personally used a firearm (§ 12022.5, subd. (a)). 

2. The Shooting

In October 2016 Chea and Campos were in a long-term

romantic relationship. Chea was a member of the Lincoln Heights

criminal street gang. On October 24, 2016 Chea drove Campos to

pick up Campos’s son, Abel, from elementary 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 “ugly look[ ],” then

made a telephone 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 were stopped at an intersection, a car

driven by Acosta pulled up on the passenger side. Campos saw 

Acosta holding an automatic weapon. (Campos subsequently 

identified Acosta as the shooter in a photographic lineup.) She 

did not see anyone else in the car. Acosta fired two or three shots, 

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 with 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 the jury convicted Acosta on all

counts and found the criminal street gang and firearm 

enhancements true. Acosta admitted the allegation he had 

suffered a prior felony conviction for which he served a prison 

term.

The trial court sentenced Acosta to what it characterized as 

a life term with 80 years minimum parole eligibility plus a 

determinate term of 44 years eight months. For the first degree

murder of Chea, the court imposed an indeterminate state prison 

term of 25 years to life, plus 25 years to life for the firearm
4

enhancement.

2 For the attempted premeditated murder of

Campos, the court sentenced Acosta to a life term with 15-year

minimum parole eligibility, plus 20 years for the firearm

enhancement. 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 enhancement 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 court declined to stay the 

sentence of this court under section 654, reasoning, “Consecutive

sentencing is warranted by the fact that we have a separate

innocent 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 impose the 15-year minimum parole

eligibility term under section 186.22, subdivision (b)(5), for the 

gang enhancement, finding, incorrectly, it was superseded by the

25-year-to-life sentence for first degree murder. (See People v.

Lopez (2005) 34 Cal.4th 1002, 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 The court struck the prior prison term enhancement.
5

exception for shooting at an occupied vehicle because the conduct 

underlying the murder, attempted murder and aggravated

assault offenses was an indivisible course of conduct directed 

against, at 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 been

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, subdivision (a), and 

a 10-year gang enhancement under section 186.22, 

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 to impose on count 3 the firearm enhancement

under section 12022.5, subdivision (a), or the gang enhancement

under section 186.22, subdivision (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 imposed 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 gang 

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 

section 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-yearto-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 murder 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 attack 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 

this 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 determinate 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 provided 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 issues he wanted the 

court to consider. 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; People 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.