Filed 6/28/16 P. v. Love CA2/3
Opinion following rehearing
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                          B261488

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA124894)
         v.

KEVIN LOVE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Pat Connolly, Judge. Reversed and remanded for resentencing only; otherwise affirmed.
         Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Scott A. Taryle, Deputy
Attorney General, for Plaintiff and Respondent.
                                     __________________________________
       A jury found defendant and appellant Kevin Love guilty of, among other things,
attempted murder and found true gang and personal gun use allegations. Love’s sole
contention on appeal is his sentence was unauthorized. We agree and therefore reverse
and remand for resentencing only.
                                          BACKGROUND
       In August 2012, 99 Mafia Crip members Damonte Lockridge and Love were at a
liquor store, where they encountered Jashan and Keith Bradley. After Love and
Lockridge made gang references, Lockridge shot at Jashan and Keith, injuring Jashan.
Love was charged with crimes arising out the shooting.1 On May 2, 2013, a jury found
Love guilty of two counts of premeditated, willful and deliberate attempted murder of
Jashan (count 1) and Keith (count 2). (Pen. Code, §§ 187, subd. (a), 664).2 As to the
attempted murder of Jashan, the jury found true gun allegations under section 12022.53,
subdivisions (b), (c) and (d), but only under subdivisions (b) and (c) as to the attempted
murder of Keith, who was uninjured. The jury found Love guilty of count 3, assault with
a firearm, and of count 4, shooting at an occupied motor vehicle. As to count 4, the jury
found true gun enhancement allegations (§ 12022.53, subds. (b), (c) & (d)). The jury
found true gang allegations as to all counts (§ 186.22, subd. (b)(1)(C)). As to Lockridge,
the jury also found true personal gun use allegations under section 12022.53, subdivisions
(b), (c) and (d), as to counts 1 and 4.
       Love was sentenced on May 21, 2013 as follows: on count 1, life with a 15-year
minimum term before parole eligibility, plus 25 years to life (§ 12022.53, subd. (d)); on
count 2, a concurrent life term plus 20 years to life (§ 12022.53, subd. (c)); count 3, a
concurrent three years plus four years (§ 12022.5); and count 4, 15 years to life, plus
25 years to life (§ 12022.53, subd. (d)), stayed under section 654.



1
       Lockridge was also charged, but he is not a party to this appeal.
2
       All undesignated statutory references are to the Penal Code.

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       Love appealed. Based on the trial court’s failure to instruct the jury on
premeditation, we reversed the jury’s true findings that the attempted murders were
premeditated, willful and deliberate. (People v. Love (July 31, 2014, B249040) [nonpub.
opn.].)3 We otherwise affirmed the judgment, but remanded for a retrial on the
premeditation allegations, at the People’s election. If the People did not elect to retry the
allegations, we directed the trial court to resentence Love.
       On remand, Love was resentenced, on count 1, to the low term of five years
consecutive to 25 years to life under section 12022.53, subdivision (d). On count 2, the
court sentenced Love to five years plus 20 years to life under section 12022.53,
subdivision (c), concurrent to count 1. As to counts 3 and 4, the court merely said the
sentences “those do not change. As to Mr. Love count 3 runs concurrent. Count 4 as to
each is stayed pursuant to 654, for a total of 30 years to life.”
                                       DISCUSSION
       On count 4, the trial court resentenced Love to the same sentence it had originally
imposed, i.e., the base term of 15 years to life under section 186.22, subdivision
(b)(4)(B), plus 25 years to life for the firearm enhancement under section 12022.53,
subdivision (d) [personal and intentional discharge of a firearm causing great bodily
injury], stayed under section 654. Love contends that this sentence was unauthorized,
because he did not personally discharge a firearm and therefore could not be sentenced
under both sections. Love’s contention is correct: where a “defendant was convicted of a
gang-related crime in the commission of which he did not personally discharge a firearm,
but a companion did,” the defendant may not be sentenced under both section 186.22,
subdivision (b)(4)(B), and under section 12022.53. (People v. Brookfield (2009) 47
Cal.4th 583, 586, 590, 594; § 12022.53, subd. (e)(2).) The defendant must be sentenced
under the provision resulting in the greater sentence. (Brookfield, at pp. 595-596.)




3
       We take judicial notice of our prior decision. (Evid. Code, § 451, subd. (a).)

                                               3
        The People agree with Love’s contention, to a limited extent. The People agree
that Love cannot be sentenced under section 186.22, subdivision (b)(4(B), and under
section 12022.53, subdivision (d), if he was merely the aider and abettor. The People
also agree that the evidence and its theory of the case at trial was Lockridge, not Love,
was the shooter. But the People disagree that it’s proper for us to strike the 15-year-to-
life term, because the jury found, albeit contrary to the evidence and the theory of the
case and probably due to an error in the verdict form, that Love “personally and
intentionally” discharged a firearm causing great bodily injury. The People therefore
conclude that because Love never, in either this appeal or in the prior one, raised an
insufficiency of the evidence claim as to the section 12022.53 findings, the appeal is a
collateral attack on the judgment that might be better raised in a writ proceeding in the
trial court.
        Apart from whether Love’s trial or appellate counsel should have raised an
insufficiency of the evidence argument as to the gun enhancement below or in the prior
appeal, any failure to raise that argument would inevitably lead to an ineffective
assistance of counsel claim. (See generally People v. Scott (1997) 15 Cal.4th 1188, 1211-
1212 [an ineffective assistance of counsel claim requires a showing of error and
prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result
would have been more favorable to the defendant]; see also Strickland v. Washington
(1984) 466 U.S. 668, 694.) The jury’s finding that Love personally and intentionally
discharged a firearm was unsupported by the evidence. He was the aider and abettor, not
the actual shooter. Because Love’s liability for the firearm enhancement was therefore
merely vicarious, he could not be sentenced under section 186.22, subdivision (b)(4)((B),
and on the gun enhancement. The 15-year-to-life sentence, being the lesser of the two,
must therefore be stricken. (See People v. Scott (1994) 9 Cal.4th 331, 354 [an
unauthorized sentence may be corrected on appeal].)
        In addition to the unauthorized sentence on count 4, the trial court imposed, on
count 3, a four-year firearm enhancement under section 12022.5. Because the jury did

                                                4
not find an allegation true under that section, the enhancement imposed on count 3 must
also be stricken.
                                     DISPOSITION
       The judgment is reversed and remanded for resentencing only. The four-year
sentence enhancement under section 12022.5 is stricken as to count 3. The 15-year-to-
life term imposed under section 186.22, subdivision (b)(4)(B) is stricken as to count 4.
The matter is remanded for resentencing. The judgment is otherwise affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 ALDRICH, J.




We concur:




              EDMON, P. J.




              HOGUE, 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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