Filed 6/27/13 P. v. Buckels CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B242631

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA094626)
         v.

DARRYL C. BUCKELS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Mike Camacho, Judge. Sentence vacated and remanded with directions.
         James Koester, 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, Eric E. Reynolds and Esther P.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.




                                __________________________________
       Darryl Buckels appeals from a judgment entered after a jury found him guilty of
three counts of attempted murder and found firearm and gang enhancement allegations to
be true. After Buckels admitted a prior serious or violent felony conviction, the trial
court sentenced him under the Three Strikes law to 170 years to life in prison. Buckels
contends the court erred in sentencing him. We agree and vacate his sentence and
remand the matter for a new sentencing hearing.
                                    BACKGROUND
       In the afternoon on June 14, 2011, Alfredo Lopez, Benjamin Valencia and Raul
Valdez (the victims) were sitting under a tree smoking when Buckels walked up to them
and asked, “‘Where are you from?’” The victims understood Buckels was asking them if
they belonged to a gang. They told Buckels they were from “‘nowhere’” and did not
“‘bang.’” Buckels continued “pushing the issue” and asking the victims if they were
from “‘somewhere.’” They continued to deny any gang affiliation. Buckels grabbed a
cigarette from Valdez, saying, “‘It is my cigarette.’” Buckels also said he was from
Neccland Crips gang. Buckels walked away.
       When Buckels was about 15 feet away from the victims, he started shooting a gun
at them. A bullet struck Lopez near his left shoulder and lodged inside his body. As
Lopez ran away, another bullet entered and exited his left arm near his wrist. A bullet
grazed Valencia’s left leg, leaving a wound that required six stitches.
       Detectives interviewed Buckels three days after the shooting. The interview was
video recorded. The video was played for the jury. During the interview, Buckels
admitted he fired his gun in the victims’ direction. He claimed he was not trying to hit
them. He said he was angry because he believed the victims were responsible for firing
upon his mother’s car while it was unoccupied and parked in the driveway of his
residence. He approached the victims and asked them about the car shooting, but they
denied involvement. As he was walking away from them, one of the victims said “some




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slick shit” to him and he began firing.1 Buckels denied the shooting was gang motivated
and denied asking the victims where they were from.
         The parties stipulated Neccland Crips is a criminal street gang within the meaning
of section 186.22, subdivision (b). The prosecution’s gang expert testified Buckels is an
admitted member of Neccland Crips and had numerous tattoos demonstrating his
affiliation with Neccland Crips. The expert also testified the scene of the offenses in this
case is an area claimed by a rival gang of Neccland Crips. The expert stated a Neccland
Crips gang member goes into rival gang territory with a gun “to put in work” for the
gang. In response to the prosecutor’s hypothetical based on the facts of this case, the
expert opined the shooting was committed for the benefit of the gang. According to the
expert, this type of shooting “instills fear within the community that Neccland Crips will
act any time, day or night, and it also builds his status up within the gang where’s he’s
brazen enough to go out in the middle of the day and commit this crime.”
         The jury found Buckels guilty of the attempted murders of Alfredo Lopez,
Benjamin Valencia and Raul Valdez (Pen. Code,2 §§ 187, subd. (a) & 664), and found
true allegations that the attempted murders were willful, deliberate and premeditated.
The jury also found true allegations that, in the commission of the attempted murders,
Buckels personally and intentionally discharged a firearm, causing great bodily injury to
Lopez and Valencia. (§ 12022.53, subds. (b)-(d).) Finally, the jury found true gang
enhancement allegations under section 186.22, subdivision (b). Buckels waived his
constitutional rights and admitted the allegations that he had sustained a prior conviction
of a serious or violent felony (attempted robbery) within the meaning of the prior serious
felony enhancement and the Three Strikes law. (§§ 667, subd. (a)(1), (b)-(i) & 1170.12,
subds. (a)-(d).)




  1Based on this evidence, the trial court decided to instruct the jury on attempted
voluntary manslaughter (heat of passion), over the prosecutor’s objection.
  2   Further statutory references are to the Penal Code.

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         The trial court sentenced Buckels to 170 years to life in prison. For the attempted
murder of Lopez (count 1), the court sentenced Buckels to 15 years to life (§ 186.22,
subd. (b)(5)), doubled to 30 years to life under the Three Strikes law, plus a consecutive
term of five years for the prior serious felony enhancement under section 667,
subdivision (a)(1), and a consecutive term of 25 years to life for the firearm enhancement
under section 12022.53, subdivision (d). The court sentenced Buckels consecutively on
the attempted murders of Valencia (count 2) and Valdez (count 3), imposing the same
terms it had imposed on count 1, minus the 5 years for the prior serious felony. Hence,
the court sentenced Buckels to 55 years to life on count 2 and 55 years to life on count 3.
         The trial court also sentenced Buckels to a concurrent term of two years for his
prior attempted robbery conviction in Los Angeles County Superior Court case No.
KA090779, after finding Buckels had violated his probation in that case.3
                                       DISCUSSION
I.       Gang Enhancements
         The jury found Buckels committed each of the three attempted murders “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). Subdivision (b)(5) of section
186.22 provides, in pertinent part, “any person who violates this subdivision in the
commission of a felony punishable by imprisonment in the state prison for life shall not
be paroled until a minimum of 15 calendar years have been served.” In accordance with
this provision, the trial court sentenced Buckels to 15 years to life on each of the three
attempted murder counts (doubled to 30 years under the Three Strikes law).
         Buckels contends the trial court should have stayed two of the three gang
enhancements under section 654, which provides in pertinent part: “An act or omission
that is punishable in different ways by different provisions of law shall be punished under

     3
    The Clerk’s Transcript on appeal includes the documents filed in case No. KA090779
(the attempted robbery/probation violation case). Buckels did not file a Notice of Appeal
in that case.

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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).)
Buckels argues “each enhancement shared a singular and concurrent criminal intent and
was based upon the same criminal action of firing the firearm in an attempt to kill one or
more of the victims within a specified ‘kill zone.’”
       Buckels concedes section 654 does not bar separate punishment for the three
attempted murders or the three firearm enhancements. “There is a multiple victim
exception to section 654 which allows separate punishment for each crime of violence
against a different victim, even though all crimes are part of an indivisible course of
conduct with a single principal objective. [Citation.] An assailant’s greater culpability
for intending or risking harm to more than one person precludes application of section
654. [Citation.]” (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631.) Buckels
argues section 654 bars separate punishment for the three gang enhancements, however,
“because the gang enhancements are not crimes of violence as anticipated under the
multiple-victim exception.”
        Section 654 prohibits multiple punishment for offenses involving a single intent
and objective. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) It does not prohibit
imposition of the same sentencing enhancement to several offenses if those offenses are
found to have had separate intents and objectives. (People v. Bragg (2008) 161
Cal.App.4th 1385, 1403[imposition of multiple gang enhancements under § 186.22 was
proper where defendant committed three attempted murders, by firing a gun into a crowd,
on behalf of the same criminal street gang]; see also People v. Akins (1997) 56
Cal.App.4th 331, 339 [“Although defendant may have had one objective to benefit his
gang, the robberies and assaults . . . involved separate victims, were separated by time
and distance, and were separate robberies. . . . Thus, even taking defendant’s argument
that the crimes constituted a continuous course of conduct comprising an indivisible
transaction, the two gang enhancements were proper because there were two independent
victims and two distinct robberies”].)



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       Because there were three victims of the three crimes of violence in this case, each
of the three attempted murders had a separate intent and objective, as Buckels
acknowledges. Thus, section 654 did not prohibit imposition of the gang enhancement
on each count of attempted murder. Buckels’s argument that only enhancements which
constitute “crimes of violence”—e.g., firearm enhancements—are within the scope of the
multiple victim exception under section 654 is without merit and not supported by
authority.
II.    Consecutive Sentencing
       Buckels asserts the trial court did not understand it had discretion under the Three
Strikes law to sentence him to concurrent terms on the three counts of attempted murder.
He contends the matter must be remanded for a new sentencing hearing due to this
prejudicial error. The Attorney General argues, “The record does not show that the trial
court misunderstood or abused its sentencing discretion.”4 Based on our review of the
record it appears the court erroneously believed consecutive sentences were mandatory.
Accordingly, we vacate Buckels’s sentence and remand the matter for a new sentencing
hearing.
       Consecutive sentences are not mandatory under section 667, subdivision (c)(6),
where multiple crimes are committed on the same occasion or arise from the same set of
operative facts. (People v. Deloza (1998) 18 Cal.4th 585, 591; section 667, subd. (c)(6)
[“If there is a current conviction for more than one felony count not committed on the
same occasion, and not arising from the same set of operative facts, the court shall
sentence the defendant consecutively on each count . . . .”].) Thus, the trial court in this

  4 The Attorney General also argues the issue is forfeited because Buckels’s counsel did
not object below. We disagree. Buckels is not raising on appeal an issue about the
manner in which the court exercised its discretion or the reasons it stated for imposing
consecutive sentencing. (See People v. Scott (1994) 9 Cal.4th 331, 356 [“complaints
about the manner in which the trial court exercises its sentencing discretion and
articulates its supporting reasons cannot be raised for the first time on appeal”].) Buckels
is claiming the trial court erroneously believed—and indicated on the record—it did not
have discretion and had no alternative but to impose consecutive sentencing. This claim
of error was not forfeited and may be raised on appeal.

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case had discretion to impose either consecutive or concurrent terms on counts 1, 2 and 3.
(People v. Deloza, supra, 18 Cal.4th at pp. 591, 596.)
       Buckels submitted a sentencing memorandum “object[ing] to the imposition of the
maximum sentence,” and requesting the trial court “impose the minimum sentence
possible under the statutory design.” (Caps. and bold font omitted.) In the memorandum,
Buckels did not set forth the particular term he wanted the court to impose, but “urge[d]
the court to exercise its fullest discretion [under section 1385, subdivision (a)] when
sentencing [him].” Buckels highlighted his age, 19 years at the time he committed the
offense, 20 years at sentencing. He also noted he “is one of several siblings who were
raised by a single mother” “in a low income, gang infested neighborhood in the city of
Pomona.” Buckels requested a sentence which would allow him “to rehabilitate himself
and lead a productive life.”
       Neither Buckels nor the People addressed in their sentencing memoranda the
court’s discretion to impose either consecutive or concurrent terms on the offenses. The
People, however, requested in their sentencing memorandum the court impose a sentence
of at least 125 years to life, indicating their position consecutive terms were warranted.
The People listed numerous circumstances in aggravation.
       At the sentencing hearing, Buckels’s counsel argued the trial court should sentence
Buckels “to the minimum,” again highlighting Buckels’s age and the circumstances of his
upbringing. Counsel also argued Buckels “took responsibility for the crime” and
admitted he had committed the shooting when he was interviewed by the detectives.
Finally, counsel argued the evidence at trial demonstrated Buckels had the opportunity to
kill the victims but did not. Buckels’s mother also addressed the court, providing
information about his life and requesting leniency in light of his age. The prosecutor did
not present oral argument regarding sentencing, submitting on the sentencing
memorandum.
       Before imposing sentence, the trial court stated: “What I want everyone to
understand is because of the nature of the charges in this case and, Ms. Nur [defense
counsel], obviously you argued the case, you pointed out to the jury that there was no

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intent to kill. You raised those issues before the trier of fact competently so [sic] and
something that I would expect you to raise and you certainly did that. But I cannot ignore
the jury’s finding and the jury has returned these verdicts as charged, which means that
the court is bound by the sentencing law, [sic] gives me no discretion whatsoever then to
impose what the law mandates. I have very little to no discretion in this matter so I have
to sentence according to what the law is mandated [sic] which I’m constitutionally
required to follow without deviation. [¶] So, Mr. Buckels, it is the judgment and
sentence of the court that you be imprisoned in the state prison for the term prescribed by
law and it falls within indeterminate sentencing.”
       The trial court imposed sentence as set forth in detail above: 60 years to life on
count 1, 55 years to life on count 2, and 55 years to life on count 3, for a total sentence of
170 years to life. The court did not expressly state it was sentencing Buckels to
consecutive terms on the offenses, but it stated “the total aggregate indeterminate
sentence in this matter is 170 years to life imprisonment in the state prison,” making its
choice to impose consecutive sentencing clear.
       At the conclusion of the sentencing hearing, the trial court made the following
comments: “Mr. Buckels, I have to remand you to the custody of the sheriff until
transport to the Department of Corrections and I hope you understand it serves me no
pleasure to have to do what I had to do today. But the law requires these sentences be
imposed. I have very little to no flexibility in that matter. All I can do, sir, is I feel real
sorry for your family. They are good people. They are here. I really wish I could have
accommodated their request but the law just does not allow me to do it.”
       The trial court’s comments indicate it believed it was required to impose a
sentence of 170 years to life and had no discretion to sentence Buckels to a shorter term.
As discussed above, that sentence was not mandatory.
       Because the record indicates the trial court “misunderstood the scope of its
discretion to impose concurrent sentences for defendant’s current convictions, and
erroneously believed consecutive sentences were mandatory,” we vacate Buckels’s
sentence and remand the matter for a new sentencing hearing. (People v. Deloza, supra,

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18 Cal.4th at p. 600.) We express no opinion on whether the court should impose
concurrent or consecutive terms on counts 1, 2 and 3 in the exercise of its discretion.5
                                      DISPOSITION
       The sentence is vacated and the matter is remanded for resentencing. In all other
respects, the judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                                CHANEY, J.
We concur:



              MALLANO, P. J.



              JOHNSON, J.




 5  In his opening appellate brief, Buckels argued the trial court incorrectly imposed a
concurrent rather than a consecutive term on the probation violation under section 667,
subdivision (c)(7). This subdivision provides: “If there is a current conviction for more
than one serious or violent felony as described in paragraph (6), the court shall impose
the sentence for each conviction consecutive to the sentence for any other conviction for
which the defendant may be consecutively sentenced in the manner prescribed by law.”
(§ 667, subd. (c)(7).) Buckels made this argument in support of his assertion the court
misunderstood its sentencing authority under the Three Strikes law. He expressly
abandoned this argument in his appellate reply brief, however, after the Attorney General
pointed out section 667, subdivision (c)(7), did not require the court to impose a
consecutive term on the probation violation because the prior conviction was not a
“current conviction” within the meaning of subdivision (c)(7). (People v. Rosbury (1997)
15 Cal.4th 206, 209-210.)

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