Filed 2/24/14 P. v. Benavidez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B245424

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA082281)
         v.

EDWARD BENAVIDEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
James B. Pierce, Judge. Affirmed as modified.


         Carla Castillo, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       A jury convicted defendant Edward Benavidez of first degree murder (Pen. Code,
§187, subd. (a))1 (count 1), attempted willful, deliberate, premeditated murder
(§§ 664/187, subd. (a)) (count 2), and possession of a firearm by a felon (§ 12021, subd.
(a)(1)) (count 3). The jury found as to all counts that the offenses were
committed for the benefit of, at the direction of, and in association with a criminal street
gang with the specific intent to promote, further, and assist in criminal conduct by gang
members within the meaning of section 186.22, subdivision (b)(1)(C). With respect to
count 1, the jury found that defendant personally and intentionally discharged a firearm
causing great bodily injury and death within the meaning of section 12022.53,
subdivision (d). In count 2, the jury found that defendant personally used a firearm
(§ 12022.53, subd. (b)) and that he personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)). Defendant admitted an allegation that he had suffered a prior
prison term within the meaning of section 667.5, subdivision (b).
       The trial court sentenced defendant to a total term of 90 years to life. The
sentence consisted of 25 years to life for the murder in count 1 plus 25 years to life for
the firearm enhancement in that count. In count 2, the court imposed 15 years to life plus
an additional 25 years to life for the firearm enhancement in that count. The court stayed
the sentence in count 3 pursuant to section 654. The court struck the section 667.5,
subdivision (b) enhancement.
       Defendant appeals on the grounds that: (1) the imposition of a 25-years-to-life
sentence for the firearm use enhancement in count 2 violated California law and his right
to a jury trial; and (2) the trial court erroneously under-calculated his credit days by 300
days. Respondent contends that the abstract of judgment must be amended to show court
security fees of $120 pursuant to section 1465.8, subdivision (a)(1).




1      All further references to statutes are to the Penal Code.


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                                          FACTS
       Since defendant’s issues on appeal relate only to sentencing, we briefly summarize
the pertinent facts in the light most favorable to the judgment. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.) On June 4, 2009, brothers Daniel and Jose Castro were in the area
of 242 West 2nd Street in San Pedro. They were visiting their mother, who had recently
moved there. Jose was not a gang member.2 As Jose and Daniel were walking from
Daniel’s car toward their mother’s home, someone across the street yelled at them and
told them to identify themselves. A man wearing a white tank top and wearing a
“spongy” ponytail, later identified as defendant, walked toward Jose and Daniel. He was
accompanied by a Hispanic woman. Defendant aggressively asked Jose and Daniel
where they were from, which meant what gang were they from. Defendant said that his
name was “Tank,” he was from the Rancho San Pedro (RSP) gang, and he was “pretty
much . . . the big shot” around the neighborhood.
       Jose told defendant that they were there visiting their mother so that defendant
would understand they were not there to cause problems. When he said they were from
Los Angeles, the Hispanic woman said, “This is RSP, and we don’t care, and we don’t
like L.A. people.”
       During their 20-minute conversation, defendant was drinking out of a Coke bottle,
and Jose pulled out a cigarette. Defendant asked Daniel if he wanted to join the RSP
gang. Jose tried to change the conversation, but defendant kept redirecting the
conversation toward Daniel. Jose got mad and said, “Don’t talk to him anymore. If you
have anything to say, you say it to me, and I’ll correct him in the house.” Jose was so
frustrated with the conversation that he lit the wrong end of his cigarette. He flipped it
around and lit it correctly. Defendant asked for a puff on Jose’s cigarette and ended up
finishing it.




2     The parties stipulated that Daniel was convicted of being a gang member with a
gun on May 9, 2007, and was sentenced to 40 months in prison.

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       Jose finally told Daniel that it was time to go home. Defendant said, “Yeah, he’s
right. Listen to your big brother. You guys should go home.” As Jose and Daniel
walked toward their mother’s house, defendant and the Hispanic woman walked in the
opposite direction. Jose and Daniel went inside. Approximately one minute later, Jose
went outside to smoke another cigarette, and Daniel said he wanted to go with him.
Defendant came out from a walkway and started shooting at Jose and Daniel.
       Jose ran toward 2nd Street, and Daniel ran toward the apartment. Defendant shot
three times at Daniel and turned the gun on Jose, whom he shot at twice. Jose crouched
behind a car. Jose heard the gun clicking and came out from behind the car. Defendant
still pointed the gun at Jose and was squeezing the trigger. Jose told defendant “put the
gun down, and let’s fight like men.” When Jose “jerked” his body as if he were going to
run after defendant, defendant ran away. Jose was not shot.
       Jose returned to his mother’s house to find her holding Daniel outside on the
porch. The deputy medical examiner who performed the autopsy on Daniel determined
that he died as a result of a gunshot wound to the back.
       Three witnesses testified that they heard the argument between defendant, his
female friend and the Castro brothers, and then heard shots. They identified defendant in
a photographic lineup. A fourth witness heard gunshots and saw a man running with a
gun. The gunman tried to fire again, but the gun did not fire. The gunman had a tank top
and ponytail. A fifth witness heard defendant yell, “This is my projects” before jumping
in a car. The witness identified defendant in a photographic lineup but claimed at trial
that she was forced to do so, which the interviewing detective denied.
       Detective David Cortez of the Los Angeles Police Department (LAPD) arrived at
the crime scene and asked Jose to show him the direction in which defendant ran. Jose
pointed out to detectives the cigarette butt, burned at both ends, from the cigarette that he
had given defendant. Detective Cortez collected the cigarette butt and two Coke bottles.
He also found a live, .38-caliber bullet about 20 feet west of the victim’s clothing.
       At approximately 5:45 a.m. on the following morning, LAPD Officer Robert
Castruita was conducting surveillance at an apartment complex in San Pedro. He

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observed defendant walk into the apartment complex at that location. At approximately
6:30 that morning, the defendant was ordered to come out of the location.
       Officer Castruita worked with the Gang Enforcement Detail, assigned to the RSP
gang. RSP claimed the City of San Pedro, including the Rancho San Pedro Housing
Complex. He testified to the primary activities of the gang and to prior felony
convictions of gang members. Defendant admitted to being an RSP gang member to
Officer Castruita and other officers. His moniker is “Tank.” Officer Castruita believed
that the murder and attempted murder in this case were committed for the benefit of the
RSP gang. The parties stipulated that defendant had been convicted of a felony on
April 6, 2006.
       Detective Cortez obtained a sample of defendant’s DNA. Three people, including
defendant, contributed to the DNA found on one of the Coke bottles. One in 89
individuals would exhibit a combination of genetic markers in the mixture profile. Two
males, including defendant, contributed to the DNA found on the cigarette butt.
Approximately one in 314,300 individuals would exhibit some combination of genetic
markers included in the mixture.
                                       DISCUSSION
I. Firearm Enhancement in Count 2
       Defendant points out that in count 2, the attempted murder, the jury was only
asked to determine whether defendant personally used a firearm (§ 12022.53, subd. (b)),
which carries a sentence of 10 years, and personally discharged a firearm (§ 12022.53,
subd. (c)), which carries a sentence of 20 years. The jury was not asked and did not find
that defendant discharged a firearm causing great bodily injury or death within the
meaning of section 12022.53, subdivision (d), which carries a sentence of 25 years to
life. Therefore, the sentence of 25 years to life that the trial court imposed for the firearm
enhancement in count 2 was unlawful and must be stricken. In its place, defendant states,
this court can order the imposition of a 20-year consecutive term, since the jury properly
found that defendant personally discharged a firearm pursuant to section 12022.53,
subdivision (c). Respondent agrees, as does this court.

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       “Punishment for a firearm-use enhancement may be imposed only if the trier of
fact finds the enhancement allegation to be true. Section 12022.53, subdivision (j),
provides: ‘For the penalties in this section to apply, the existence of any fact required . . .
shall be alleged in the information or indictment and either admitted by the defendant in
open court or found to be true by the trier of fact.’” (People v. Chambers (2002) 104
Cal.App.4th 1047, 1049; see also People v. Najera (1972) 8 Cal.3d 504, 510, disapproved
on another ground in People v. Wiley (1995) 9 Cal. 4th 580, 587-588 [firearm
enhancement requires a jury determination of the factual question whether or not
defendant used a firearm in the commission of the underlying offense unless defendant
waived a jury trial or pleaded guilty].) Because the jury did not find the enhancement
under section 12022.53, subdivision (d) to be true, the enhancement must be stricken, and
the enhancement under section 12022.53, subdivision (c) imposed. An unauthorized
sentence may be corrected at any time regardless of whether an objection was made in
the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854.)
II. Credits
       Defendant argues that the trial court erred in awarding only 757 days of actual
credit. He asserts that he was arrested on June 4, 2009, and sentenced on April 25, 2012.
Therefore, he was in custody for 1,057 days and the abstract of judgment must be
corrected to reflect this number.
       The record shows that defendant was arrested on June 5, 2009, the morning after
the shooting. He was sentenced on April 25, 2012. Therefore he is entitled to 1,056 days
of actual custody credit.
       Respondent argues that this claim is barred because defendant did not first present
the issue to the trial court. Respondent acknowledges that People v. Acosta (1996) 48
Cal.App.4th 411, 427 (Acosta), held that section 1237.1 does not require a defendant to
first raise a credits issue in the superior court when the defendant has raised other issues
on appeal. Respondent asserts that such an interpretation has no support in the language
of the statute.



                                               6
       The California Supreme Court has stated that, “[b]y its terms, section 1237.1 bars
a defendant . . . from taking an appeal as to any such question unless he has first
presented it to the superior court . . . . By implication, and a fortiori, it allows, if not
requires, the Court of Appeal to decline to address a question of this sort unless he has
complied. . . . People v. Acosta, supra, 48 Cal. App. 4th 411—on whose reasoning and
result we need not, and do not, pass . . .—is not to the contrary. It holds no more than
that the Court of Appeal may address a question of this sort if it is properly presented
with others as well. It does not even suggest that the Court of Appeal must do so,
especially when, as here, it finds that that condition is not satisfied.” (People v. Mendez
(1999) 19 Cal.4th 1084, 1100-1101.) In Mendez, the other issues were not “properly
presented” because Mendez’s appeal followed a guilty plea, and he had not obtained a
certificate of probable cause. The credits issue was the only non-certificate issue, and the
appellant had not raised it until his reply brief. (Id. at pp. 1091-1092.)
       We believe that in the instant case, where the record is clear and at least one other
issue has been properly raised, judicial economy is well served by amending the abstract
of judgment on appeal. There is no indication that defendant was out of custody at any
time after his arrest. On the day the probation report was prepared (March 20, 2012), the
probation officer estimated that defendant had been in custody approximately 1,021 days.
Defense counsel, who gave the trial court the number of actual days, was clearly
mistaken. We see no reason to refuse to follow Acosta.
III. Court Security Fees
       In addition to other fines, defendant was ordered to pay a $40 court security fee
pursuant to section 1465.8, subdivision (a)(1).
       As respondent asserts, a court security fee must be imposed on each conviction.
Section 1465.8, subdivision (a)(1) provides: “(a)(1) To assist in funding court operations,
an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal
offense, including a traffic offense, except parking offenses as defined in subdivision (i)
of Section 1463, involving a violation of a section of the Vehicle Code or any local
ordinance adopted pursuant to the Vehicle Code.”

                                                7
       “[S]ection 1465.8 unambiguously requires a fee to be imposed for each of
defendant’s convictions. Under this statute, a court security fee attaches to ‘every
conviction for a criminal offense,’” regardless of whether any of the convictions were
stayed under section 654. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865; People v.
Crittle (2007) 154 Cal.App.4th 368, 370-371 [§ 654 does not apply to a court security fee
because that fee is not punishment].) Therefore this portion of defendant’s sentence is
also unauthorized, and the sentence must be modified accordingly. (People v. Scott
(1994) 9 Cal.4th 331, 354.)
                                      DISPOSITION
       The judgment is modified to strike the 25-years-to-life enhancement under section
12022.53, subdivision (d) in count 2 and to impose an enhancement of 20 years under
section 12022.53, subdivision (c ), resulting in a sentence of 15 years to life plus 20 years
in count 2. Defendant’s total sentence is 65 years to life plus 20 years. The judgment is
modified to grant defendant 1,056 days of custody credit and to impose court security
fees totaling $120 instead of $40. In all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       FERNS, J.*




_______________________________________________________________

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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