Filed 7/18/16 P. v. Perry CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----

THE PEOPLE,

                   Plaintiff and Respondent,                                                 C078998

         v.                                                                     (Super. Ct. No. SF125430A)

CHARLES OWEN PERRY,

                   Defendant and Appellant.


         A jury found defendant Charles Owen Perry guilty of numerous felonies,
including first degree robbery. Defendant subsequently pleaded guilty to active
participation in a criminal street gang, which had been charged in the same case but
was bifurcated from the other charges. The trial court sentenced defendant to 21 years
4 months in state prison, including a consecutive eight-month term for active
participation in a criminal street gang.
         Defendant now contends the trial court should have stayed execution of the
sentence for active participation in a criminal street gang pursuant to Penal Code
section 654.1 The People agree and we do too. Because correction of the error will
require the trial court to exercise its discretion, we will remand the matter for
resentencing and otherwise affirm the judgment.



1 Undesignated statutory references are to the Penal Code.


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                                     BACKGROUND
       Defendant and his friend Steven John Carpenter entered the home of Carpenter’s
grandmother on September 9, 2013. Defendant was armed with a handgun. Carpenter’s
twin sisters and two teenage boys were inside the home. Defendant held the gun to the
heads of the two teenage boys and grabbed the gold chains from around their necks.
Defendant and Carpenter then fled. The victims and Carpenter’s sisters told the police
that Carpenter and another man had taken the boys’ gold chains at gunpoint.
       Defendant was arrested two days later while leaving the apartment of Brittany
Gaines, the mother of his infant son. The police searched her apartment and found a
loaded handgun, ammunition, and cartridge magazines. The officers also found indicia
that defendant had been living with Gaines.
       A jury found defendant guilty of numerous felonies, including first degree
robbery. (§ 212.5, subd. (a).) Thereafter, defendant pleaded guilty to the bifurcated
count of active participation in a criminal street gang. (§ 186.22, subd. (a).) In exchange
for defendant’s plea, the People moved to dismiss several gang enhancement allegations.
The parties stipulated that the factual basis for the plea was found in the preliminary
hearing transcript. The People’s gang expert testified at the preliminary hearing that
defendant was a member of the Northside Gangster Crips, a criminal street gang. The
expert further opined the home invasion robbery committed by defendant and Carpenter
was gang-related, and stealing the gold chains would benefit the gang by allowing gang
members to sell them in order to obtain money for guns and drugs.
       The trial court sentenced defendant to an aggregate term of 21 years 4 months in
state prison, including eight months for active participation in a criminal street gang.
                                       DISCUSSION
       Defendant contends his sentence for active participation in a criminal street gang
must be stayed because it is based upon the same acts as the robbery offenses for which
he was punished. The People agree.

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       Section 654 provides in pertinent part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, subd. (a).) “The purpose
of section 654 is to prevent multiple punishment for a single act or omission, even though
that act or omission violates more than one statute and thus constitutes more than one
crime. Although the distinct crimes may be charged in separate counts and may result in
multiple verdicts of guilt, the trial court may impose sentence for only one offense -- the
one carrying the highest punishment. [Citation.]” (People v. Liu (1996) 46 Cal.App.4th
1119, 1135, fn. omitted.)
       In People v. Mesa (2012) 54 Cal.4th 191 (Mesa), the California Supreme Court
held that section 654 does not permit separate punishment for the section 186.22,
subdivision (a) crime of active participation in a criminal street gang when the only
evidence of such participation is the current charged offenses, even if there were multiple
objectives. (Mesa, at pp. 199-200.) This is because the crime of being an active
participant in a criminal street gang requires not only that the defendant be a member of
the gang, but that he also promote, further, or assist in the felonious conduct. (Id. at
pp. 196-197.) Thus, where the underlying felony is also the act “ ‘that transform[s] mere
gang membership -- which, by itself, is not a crime -- into the crime of gang
participation,’ ” section 654 bars multiple punishment for that single act. (Mesa, at
pp. 197-198.)
       In this case, defendant was charged with active participation in a criminal street
gang pursuant to section 186.22, subdivision (a). The evidence of defendant’s active
participation consisted entirely of evidence associated with the robberies for which he
was also convicted. Accordingly, pursuant to Mesa, the sentence for active participation
in a street gang must be stayed. (Mesa, supra, 54 Cal.4th at p. 201.) The length of that
sentence, however, must still be determined.

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       “The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to
a consecutive sentence, not a sentence stayed under section 654.” (People v. Cantrell
(2009) 175 Cal.App.4th 1161, 1164.) The trial court selected defendant’s conviction for
first degree robbery as the principle term. If the conviction on that term were ever
invalidated, a full term sentence on the stayed term would come into effect. (Ibid.) Thus,
a full term sentence must be imposed on defendant’s conviction for active participation in
a criminal street gang and then stayed. Because that sentence should be commensurate
with the trial court’s determination of defendant’s punishment, we remand this matter to
the trial court for a determination of whether the full lower, middle, or upper term should
be imposed and then stayed.
                                      DISPOSITION
       The sentence on defendant’s conviction for active participation in a criminal street
gang (§ 186.22, subd. (a)) is reversed and the matter is remanded for resentencing on that
conviction so the trial court can exercise its discretion to impose the low, middle, or
upper term and then stay execution of that term. The judgment is otherwise affirmed.
Following resentencing, the trial court is directed to prepare an amended abstract of
judgment and to forward a certified copy of the amended abstract to the Department of
Corrections and Rehabilitation.


                                                     /S/
                                                  MAURO, Acting P. J.

We concur:


   /S/
MURRAY, J.


    /S/
HOCH, J.


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