Filed 1/12/22 P. v. Paniagua 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ARIEL BAKER PANIAGUA,

Defendant and Appellant. B3 13479

(Los Angeles County Super. Ct. No. LA081995 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas S. Rubi n son , 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 allegation s 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 mo nths to life. Paniagua appealed, conte nding, 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 an y, of Senate Bill No. 136 on a prior prison term
enhancement under sectio n 667.5, subdivision (b). ( People v. Paniagua (Nov. 4, 2019, B289253) [nonpub. opn.] ( Paniagua I ).)
On remand the trial cou rt correct ed the errors we discussed in Paniagua I

, declin ed to exercise its discretion to strike the five

year enhancement under section 667, subdivision (a) , and struck the prior prison term enhancement u nder section 667.5,
subdivision (b)

.

1 Undesignated statutory references are to the Penal Code.3 Paniagua appeal ed 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
enhancement s under section 12022.53, subdivision s (b) and ( c )

, because those enhancement s do not apply to a conviction for shooting at an occupied motor vehicle. Second

, the trial court

err ed in imposing a firearm enhancement under section 12022. 5,
subdivision (a)

, b ecause that enhancement does not apply where, as here, use of a firearm is an element of the offense

. Therefore,

w e modify the judgment to strike th ese enhancements and affirm the judgment as modified

.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Paniagua of Multiple Crimes, Paniagua Appeal s, 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 t he street and killed
someone in it

. In another shooting, Paniagua fired a gun into

a nother occupied car. ( Paniagua I

, supra , B289253.) In connection with the first shooting, t he 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 occup ied motor vehicle (§ 246, count 7 ) and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 9 ). The People alleged that Paniag ua4

committed all of the offenses for the benefit of, at the direction of, or in association with a criminal street ga ng, with the specific intent to promote, further

, or assist in criminal conduct by gang
members , within the meaning of section 186.22,
subd ivision (b)(1) ; that in committing the offenses related to the first shooting he personally and intentionally dischar ged a firearm causing great bodily injury or death , within the meaning
of section 12022 .53, subd ivision (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, subd ivision (c) , and p ersonally used a firearm , within the meaning of section 12022.5, subdivision (a), and section

1 2022.53, subd ivision ( b )

. The jury found Paniagua guilty on all
counts and found true all the al legations except the g ang 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 strike s 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,
subd ivision (b). In March 2018 the trial court sentenced Paniagua to prison
for 268 years four months to li fe 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 t he 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 tha t section 186.22, subdivision (b)( 4)(B), “mandates5

a sentence of life

, with a minimum term of that indeterminate sentence being 15 years.” 2 Finally, t he court imposed and stayed

a 10

- year term unde r 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 enhancement 4 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 impos ed on count 7 for the gang

2 As discussed, the court erroneously imposed this term because the jury found the g ang 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 dem onstrate 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, e verybody 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 w here they may, an innocent man is dead for no reason.”

4 Technically, s ection 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 i f 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 th is and other errors , to exercise
its discretion whether to strike the pr ior serious felony conviction under section 667, subdivision (a) , and to consider the effect, if any, of Senate Bill No. 136 on the enhancement u nder section 667.5, subdivision (b)

. 5 ( Paniagua I

, supra , B289253.)

B. The Trial Court Resentences Paniagua The trial court resentenced Paniag u a i n 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 portion s of th e 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 Sen ate Bill

5 At the time the trial court sentenced Paniagua in 2018

, section 667.5, subdivision (b), required the court to impose a one

year 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 C al.App.5th 664, 681.) Senate Bill No. 136, effective January 1, 2020, ame nded 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 viole nt 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 .)7

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. T he Trial Court Erred in Imposing the Firearm
Enhancement s on Count 7 Paniagua argues , the People concede, and we agree the
trial court erred in imposing the firearm enhancement unde r section 12022.53, subdivision (c)

, on count 7

. Section 12022.53

, subdivisions (b)

- ( d ), provide for enhance ments 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 [s ection 12022.53 “‘imposes sentence enhancements for firearm use applicable to
certain enumerated felonies ,’” where the “‘ enhancements vary in length, corresponding to various use s 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 unde r section 12022.53, subdivision (c). S ection 246 , ho wever, is not one of the8

felonies listed i n section 12022.53, subdivision (a). Section 246 is listed in section 12022.53, subdivision (d), but th e 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 shot s Paniagua fi r ed into
the second vehicle did not hit anyone

. S ection 12022.53, s ubdivision (a)(17)

, provides the firearm

use enhancement also applies to any felony “punishable by death or imprisonment in the state prison for life.” A s discussed, the
trial court initially imposed a sentence of 15 years to life for a true finding on the gang allegation for co unt 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 puni shable by

. . . imprisonment in the state prison for life ’
wi thin 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 t hat

term

. Therefore

, the sentence on count 7 was no longer a life

sentence , and the trial court erred in imposing the firear m enhancement unde r section 12022.53, subdivision (c)

. For the same reason, the court erred in imposing and staying execution of
the firearm enhancement unde r 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 enhancements9

that were found true for the same crime must be imposed and then stayed”].) Paniagua also argue s , the People concede, and we agree the
firearm en hancement und er section 12022.5, subdivision (a)

, does not apply t o 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 attempt ed 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 felon y ”] ; 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 ”] .) T herefore

, 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

occup ied 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, P aniagua
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 the10

sentencing errors without remanding

. R emand is not appropriate in this case.
A ppellate co urts 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

- third

the

- 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, 9 86; 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 c ourt declined to exercise its discretion to strike the prior serious felony conviction under section 667, subdi vision (a), or to modify the judgment other than as we directed. In addition

,

n o other part of Paniagua’s aggregate sentence depend s 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 [ “ t he full resentencing rule allows a c ourt to revis it al l prior sentencing decisions when resente ncing 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 princi pal term”];11

People v. Buyck s , supra , 5 Cal. 5th at p. 894 [when resentencing a
defendant und er 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 rem ain s for the trial court to exercise

. Moreover,

t he trial court imposed consecutive sentences on each count and

, stating Paniagua committed “an appalling set of crimes

, ” the

court declin ed to strike Paniagua’s prior serious or violent felony
conviction under the three strikes law or the firearm
enhancement s under section 12022.53, subdivi sion (h). The court
also selected the upper term on the firearm enhancement und er section 12022.5, subdivision (a), and commented on Paniagua ’s egregious conduct and se nseless 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 r emand would accomplish anything. ( See People v. Buycks

, supra , 5 Cal.5th at p. 896, fn. 15 [ “ B ecause 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 would12

not exercise its new discretion to strike defendant’s
enhancement” ] .)

DISPOSITION

The judgment is modified to strike th e 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 Ch ief Justice pursuant to article VI, section 6 of the California Constitution.