Filed 1/12/22 P. v. Paniagua 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.

ARIEL BAKER PANIAGUA,

Defendant and Appellant.

B313479

(Los Angeles County

Super. Ct. No. LA081995)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Thomas S. Rubinson, Judge. Affirmed as 

modified.

David Andreasen, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising 

Deputy Attorney General, and Allison H. Chung, Deputy 

Attorney General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted Ariel Baker Paniagua on one count of 

murder, three counts of attempted murder, two counts of 

shooting at an occupied motor vehicle, and one count of 

possession of a firearm by a felon. The jury also found true 

firearm allegations in connection with each of the offenses and, 

with one exception, gang allegations. The trial court sentenced 

Paniagua to a prison term of 268 years four months to life.

Paniagua appealed, contending, among other things, his

sentence on one of his two convictions for shooting at an occupied 

motor vehicle incorrectly reflected a true finding on a gang 

allegation. Paniagua also argued the trial court should have an 

opportunity to exercise its discretion whether to strike his prior 

serious felony conviction under Penal Code section 667, 

subdivision (a).1 We affirmed the judgment in most respects and 

directed the trial court to correct several sentencing and other

errors, to exercise its discretion whether to strike the five-year 

enhancement under section 667, subdivision (a), and to consider 

the effect, if any, of Senate Bill No. 136 on a prior prison term

enhancement under section 667.5, subdivision (b). (People v. 

Paniagua (Nov. 4, 2019, B289253) [nonpub. opn.] (Paniagua I).) 

On remand the trial court corrected the errors we discussed in 

Paniagua I, declined to exercise its discretion to strike the fiveyear enhancement under section 667, subdivision (a), and struck 

the prior prison term enhancement under section 667.5, 

subdivision (b).

1 Undesignated statutory references are to the Penal Code.
3

Paniagua appealed again. He argues, the People concede, 

and we agree the trial court committed two additional sentencing

errors on Paniagua’s conviction for shooting at an occupied motor

vehicle. First, the trial court erred in imposing firearm 

enhancements under section 12022.53, subdivisions (b) and (c), 

because those enhancements do not apply to a conviction for 

shooting at an occupied motor vehicle. Second, the trial court 

erred in imposing a firearm enhancement under section 12022.5, 

subdivision (a), because that enhancement does not apply where, 

as here, use of a firearm is an element of the offense. Therefore, 

we modify the judgment to strike these enhancements and affirm

the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Paniagua of Multiple Crimes, 

Paniagua Appeals, and We Reverse In Part

In October 2015 Paniagua went on a shooting spree. In one

shooting, Paniagua fired a gun into a car with three people in it. 

One of the bullets hit a car parked down the street and killed

someone in it. In another shooting, Paniagua fired a gun into 

another occupied car. (Paniagua I, supra, B289253.)

In connection with the first shooting, the People charged 

Paniagua with murder (§ 187, subd. (a), count 1), attempted, 

willful, deliberate, and premeditated murder (§§ 187, subd. (a), 

664, counts 2 through 4), and shooting at an occupied motor 

vehicle (§ 246, count 5). In connection with the second shooting, 

the People charged Paniagua with shooting at an occupied motor

vehicle (§ 246, count 7) and possession of a firearm by a felon 

(§ 29800, subd. (a)(1), count 9). The People alleged that Paniagua
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committed all of the offenses for the benefit of, at the direction of, 

or in association with a criminal street gang, with the specific 

intent to promote, further, or assist in criminal conduct by gang 

members, within the meaning of section 186.22, 

subdivision (b)(1); that in committing the offenses related to the 

first shooting he personally and intentionally discharged a 

firearm causing great bodily injury or death, within the meaning

of section 12022.53, subdivision (d); and that in committing the 

offense related to the second shooting (count 7) he personally and 

intentionally discharged a firearm, within the meaning of section 

12022.53, subdivision (c), and personally used a firearm, within 

the meaning of section 12022.5, subdivision (a), and section 

12022.53, subdivision (b). The jury found Paniagua guilty on all 

counts and found true all the allegations except the gang 

allegation related to count 7. Paniagua admitted that he had 

been convicted of a prior serious or violent felony within the 

meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, 

subds. (a)-(d)), that the felony was a serious felony within the 

meaning of section 667, subdivision (a), and that he had served a 

prior prison term, within the meaning of section 667.5, 

subdivision (b).

In March 2018 the trial court sentenced Paniagua to prison 

for 268 years four months to life and imposed and stayed 

execution of additional terms. On the conviction for the second 

shooting at an occupied motor vehicle, count 7 (the subject of this 

appeal), the court sentenced Paniagua to a term of three years 

four months, plus 20 years for the firearm enhancement under 

section 12022.53, subdivision (c), plus five years for the prior 

serious felony conviction under section 667, subdivision (a). The 

court stated that section 186.22, subdivision (b)(4)(B), “mandates 
5

a sentence of life, with a minimum term of that indeterminate 

sentence being 15 years.”2 Finally, the court imposed and stayed

a 10-year term under section 12022.53, subdivision (b), and the 

upper term of 10 years under section 12022.5, subdivision (a).3

Paniagua appealed. He argued that, on his conviction for 

shooting at an occupied motor vehicle in count 7, the trial court

erred in imposing the gang enhancement4 and that the minute 

order erroneously reflected a true finding on the gang allegation

for that count. Paniagua also asked us to remand the matter for 

the trial court to exercise its discretion whether to strike the 

prior serious felony conviction under section 667, subdivision (a). 

We agreed that the sentence imposed on count 7 for the gang 

2 As discussed, the court erroneously imposed this term 

because the jury found the gang allegation related to count 7 not 

true. 

3 The court cited the seriousness of Paniagua’s crimes, 

stating: “The circumstances of the present case are so extreme 

and demonstrate a lawlessness from Mr. Paniagua and such a 

commitment to his gang and the gang lifestyle and put the 

community—killing an absolutely—I mean, everybody involved 

in the case was innocent, but the person who was killed was just 

a regular guy, going to his car, and because of Mr. Paniagua’s 

gang commitment and his willingness to spray bullets through 

the air of our community and let the chips fall where they may, 

an innocent man is dead for no reason.” 

4 Technically, section 186.22, subdivision (b)(4)(B), “is not an 

enhancement, but rather an ‘alternative penalty provision,’

meaning it sets forth an alternative penalty for the underlying 

offense if the jury finds the conditions specified in the provision 

have been satisfied.” (People v. Leon (2016) 243 Cal.App.4th 

1003, 1011, fn. 8; see People v. Jones (2009) 47 Cal.4th 566, 576.)
6

allegation was unauthorized and that the minute order 

incorrectly reflected a true finding on the gang allegation. We 

directed the trial court to correct this and other errors, to exercise 

its discretion whether to strike the prior serious felony conviction

under section 667, subdivision (a), and to consider the effect, if 

any, of Senate Bill No. 136 on the enhancement under section 

667.5, subdivision (b).

5 (Paniagua I, supra, B289253.) 

B. The Trial Court Resentences Paniagua

The trial court resentenced Paniagua in June 2021. As 

relevant to this appeal, the court acknowledged the sentencing 

error on count 7 and stated, “There’s no sentence whatsoever on 

[the] gang allegation.” The court also struck the portions of the 

minute order that stated the jury had found the gang allegation 

true and that the court had imposed a term of 15 years to life for 

the true finding. The court also struck the one-year enhancement 

because section 667.5, subdivision (b), as amended by Senate Bill 

5 At the time the trial court sentenced Paniagua in 2018, 

section 667.5, subdivision (b), required the court to impose a oneyear enhancement for each true finding “the defendant had 

served a separate prior prison term and had not remained free of 

custody for at least five years.” (People v. Jennings (2019) 

42 Cal.App.5th 664, 681.) Senate Bill No. 136, effective 

January 1, 2020, amended section 667.5, subdivision (b), by 

limiting the applicability of the one-year prior prison term 

enhancement to defendants who served a prior prison sentence 

for a sexually violent offense, as defined in Welfare and 

Institutions Code section 6600, subdivision (b). (Stats. 2019, 

ch. 590, § 1; see People v. Griffin (2020) 57 Cal.App.5th 1088, 

1092, review granted Feb. 17, 2021, S266521; People v. Shaw

(2020) 56 Cal.App.5th 582, 588.)
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No. 136, no longer applied to Paniagua’s prior prison term. 

Finally, the court acknowledged it had discretion to strike the 

prior serious felony allegation but declined to do so, stating that 

Paniagua’s “record is obviously quite serious, and the crimes in 

this case couldn’t be much more serious, and there were multiple 

crimes for days, shooting guns on the streets of Los Angeles in 

broad daylight.” Paniagua appealed again. 

DISCUSSION

A. The Trial Court Erred in Imposing the Firearm

Enhancements on Count 7

Paniagua argues, the People concede, and we agree the 

trial court erred in imposing the firearm enhancement under 

section 12022.53, subdivision (c), on count 7. Section 12022.53, 

subdivisions (b)-(d), provide for enhancements where the

defendant uses or personally and intentionally discharges a 

firearm in the commission of certain felonies. Section 12022.53, 

subdivision (a), lists most of those felonies. (See People v. 

Anderson (2020) 9 Cal.5th 946, 950-951 [section 12022.53 

“‘imposes sentence enhancements for firearm use applicable to 

certain enumerated felonies,’” where the “‘enhancements vary in 

length, corresponding to various uses of a firearm’”]; People v. 

Fialho (2014) 229 Cal.App.4th 1389, 1395 [section 12022.53 

applies “to an enumerated list of felony offenses”].) As discussed, 

the jury found true the allegation Paniagua personally and 

intentionally discharged a firearm in the commission of shooting 

at an occupied motor vehicle, in violation of section 246, and the 

trial court imposed a 20-year enhancement under section 

12022.53, subdivision (c). Section 246, however, is not one of the 
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felonies listed in section 12022.53, subdivision (a). Section 246 is 

listed in section 12022.53, subdivision (d), but the enhancement 

only applies under that subdivision where the defendant

personally and intentionally discharges a firearm and 

proximately causes great bodily injury or death. That did not 

occur in connection with count 7; the shots Paniagua fired into 

the second vehicle did not hit anyone.

Section 12022.53, subdivision (a)(17), provides the firearm 

use enhancement also applies to any felony “punishable by death 

or imprisonment in the state prison for life.” As discussed, the 

trial court initially imposed a sentence of 15 years to life for a 

true finding on the gang allegation for count 7. (See People v. 

Brookfield (2009) 47 Cal.4th 583, 591 [“Because the felony that 

defendant committed (shooting at an inhabited dwelling) was 

punishable by a life term under section 186.22(b)(4) (because it 

was committed to benefit a criminal street gang), he committed a 

‘felony punishable by . . . imprisonment in the state prison for life’

within the meaning of subdivision (a)(17) of section 12022.53.”].) 

But that was a mistake: The jury actually found that gang 

allegation not true, and at resentencing the court struck that 

term. Therefore, the sentence on count 7 was no longer a life 

sentence, and the trial court erred in imposing the firearm 

enhancement under section 12022.53, subdivision (c). For the 

same reason, the court erred in imposing and staying execution of 

the firearm enhancement under section 12022.53, subdivision (b). 

(See People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 [“section 

12022.53 requires that, after a trial court imposes punishment 

for the section 12022.53 firearm enhancement with the longest 

term of imprisonment, the remaining section 12022.53 firearm 

enhancements and any section 12022.5 firearm enhancements 
9

that were found true for the same crime must be imposed and 

then stayed”].)

Paniagua also argues, the People concede, and we agree the 

firearm enhancement under section 12022.5, subdivision (a), does 

not apply to his conviction for shooting at an occupied motor 

vehicle. Section 12022.5, subdivision (a), provides that any 

person who personally uses a firearm in the commission of a 

felony or attempted felony shall be punished by an additional 

term of imprisonment, “unless use of a firearm is an element of 

that offense.” Firearm use is an element of the offense of 

shooting at an occupied motor vehicle. (See § 246 [“[a]ny person 

who shall maliciously and willfully discharge a firearm at an . . . 

occupied motor vehicle . . . is guilty of a felony”]; People v. 

Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527 [“firearm use 

is a necessary element of the offense of discharging a firearm at 

an occupied motor vehicle”].) Therefore, section 12022.5, 

subdivision (a), does not apply to count 7. (See People v. Kramer

(2002) 29 Cal.4th 720, 723, fn. 2 [section 12022.5, subdivision (a), 

does not apply to the crime of discharging a firearm at an 

occupied motor vehicle because firearm use is an element of the 

underlying offense].)

B. Remand Is Not Necessary

Citing People v. Buycks (2018) 5 Cal.5th 857, Paniagua 

contends that, in addition to striking the unauthorized firearm 

enhancements, we should remand the matter to allow the trial 

court to conduct “‘“a full resentencing as to all counts.”’” The 

People argue that we should modify the judgment to correct the 
10

sentencing errors without remanding. Remand is not 

appropriate in this case.

Appellate courts have the authority to modify an 

unauthorized sentence without remanding the case for the trial 

court to correct the error. (§ 1260; see People v. Thomas (2012) 

53 Cal.4th 771, 837 [modifying the judgment to correct an 

erroneous sentence that did not reflect the jury’s verdict]; People 

v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198 [modifying the 

judgment to correct the erroneous application of the “‘one-thirdthe-midterm rule’” of section 1170.1, subdivision (a)].) “‘When 

sentencing error does not require additional evidence, further fact 

finding, or further exercise of discretion, the appellate court may 

modify the judgment appropriately and affirm it as modified.’” 

(People v. Harbison (2014) 230 Cal.App.4th 975, 986; see People v. 

Haskin (1992) 4 Cal.App.4th 1434, 1441.)

Correcting the unauthorized portions of Paniagua’s

sentence on count 7 does not require additional evidence, fact 

finding, or further exercise of discretion. Indeed, at resentencing, 

the trial court declined to exercise its discretion to strike the 

prior serious felony conviction under section 667, subdivision (a), 

or to modify the judgment other than as we directed. In addition, 

no other part of Paniagua’s aggregate sentence depends on the

three, now-stricken firearm enhancements (two of which the trial 

court stayed execution of). (Cf. People v. Valenzuela (2019) 

7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court 

to revisit all prior sentencing decisions when resentencing a 

defendant,” for example, “when a felony conviction supplying a 

principal sentence term is reversed on appeal and the case 

returns to the trial court for resentencing, that court must select 

another conviction, if it exists, to supply the new principal term”];
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People v. Buycks, supra, 5 Cal.5th at p. 894 [when resentencing a 

defendant under section 1170.18, subdivision (a), the court must 

“resentence the defendant generally and must therefore 

reevaluate the continued applicability of any enhancement based 

on a prior felony conviction”].)

Paniagua argues we should remand the matter “‘“so the 

trial court can exercise its sentencing discretion in light of the 

changed circumstances.”’” Paniagua, however, does not identify 

what discretion remains for the trial court to exercise. Moreover, 

the trial court imposed consecutive sentences on each count and, 

stating Paniagua committed “an appalling set of crimes,” the 

court declined to strike Paniagua’s prior serious or violent felony

conviction under the three strikes law or the firearm 

enhancements under section 12022.53, subdivision (h). The court 

also selected the upper term on the firearm enhancement under 

section 12022.5, subdivision (a), and commented on Paniagua’s 

egregious conduct and senseless violence, both at the initial 

sentencing hearing and at resentencing. As a result, the court 

essentially imposed the maximum possible sentence. There is no 

realistic possibility remand would accomplish anything. (See 

People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15 [“Because the 

resentencing court had imposed the maximum possible sentence 

. . . there is no need to remand the matter to the trial court to 

exercise its sentencing discretion anew.”]; People v. Lopez (2019) 

42 Cal.App.5th 337, 342 [“Because the trial court imposed the 

maximum possible sentence, there is no need for the court to 

again exercise its sentencing discretion.”]; People v. Franks (2019) 

35 Cal.App.5th 883, 893 [the record “affirmatively demonstrates 

that the trial court was not inclined towards leniency and would 
12

not exercise its new discretion to strike defendant’s 

enhancement”].)

DISPOSITION

The judgment is modified to strike the firearm 

enhancements on count 7. As modified, the judgment is affirmed. 

The trial court is directed to correct the abstract of judgment and 

send a copy of the amended abstract to the Department of 

Corrections and Rehabilitation.

SEGAL, J. 

We concur: 

PERLUSS, P. J.

WISE, J.*

* Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.