Filed 5/19/15 P. v. Thompson 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B252528

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA091280)
         v.

MATHEW ARLIN THOMPSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Tomson T. Ong, Judge. Affirmed in part, reversed in part and remanded for
resentencing.


         Barbara S. Perry, 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, Steven D. Matthews and
J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Appellant Mathew Arlin Thompson and his brother Braden William Thompson
(Braden) were tried together on a multi-count information. Braden is not a party to this
appeal. The jury found appellant guilty of second degree murder of Kyon Hicks (Kyon)
(Pen. Code, § 187, subd. (a);1 count1), shooting at an inhabited dwelling (§ 246; count 3),
and attempted murder of Larry Beasley (Larry) and R.C. (R.) (§§ 664, 187, subd. (a);
counts 6 & 7).2 As to each of these counts, the jury found true the gang allegation (§
186.22, subd. (b)(1)(c)). As to counts 3, 6 and 7, the jury found true the allegation that a
principal personally and intentionally discharged a firearm within the meaning of section
12022.53, subds. (c) and (e)(1). The jury acquitted appellant on count 2, attempted
murder of Kyoko Carllel (Kyoko). In a bifurcated trial, the trial court found true the prior
prison term allegation. Appellant was sentenced to a total term of 140 years to life, as
discussed in part V below.
       Appellant contends the trial court erred in denying his motions for severance and a
new trial, admitting a witness’s statement, and in sentencing him. He also contends the
evidence was insufficient to support the gang enhancement. We remand the case for the
limited purpose of resentencing, otherwise we affirm the judgment.
                                          FACTS
Prosecution Case
       Events Leading to Murder
       In January 2012, Laverne Alvarez (Nicki) lived in an apartment on the ground
floor of an apartment building in the City of Torrance, along with her two-year-old
daughter R. (the victim in count 7) and her three other children. Larry (the victim in
count 6) is R.’s father. Although Nicki had a restraining order against Larry for domestic
violence, he regularly violated it to spend time with the children. Le Porsche Brumfield
(Le Porsche) lived in the apartment directly above Nicki’s apartment. She and Nicki


1
       All further statutory references are to the Penal Code unless otherwise indicated.
2
       We refer to the victims and witnesses by their first names, purely for ease of
reference.

                                              2
were friendly. Larry’s mother lived in an upstairs apartment across the hall from Le
Porsche.
       On the night of January 23, 2012, Larry was at Nicki’s apartment taking care of
the children while she was at work. He went to the laundry room outside the back door
of the apartment to wash clothes. R. was standing in the doorway of the laundry room.
Appellant appeared with Le Porsche. Appellant walked up to Larry, “got in [his] face”
and twice said, “Tragniew Compton Crip.” Larry responded, “All right.” Appellant
asked Larry where he was “from.” Larry said nothing because R. was with him. Larry
had seen appellant at the complex before but had never spoken to him, and did not know
who he was.
       Le Porsche walked up the back stairs to her apartment and appellant followed her,
saying something else to Larry. Larry returned to Nicki’s apartment with R. He called
Nicki, telling her to come home to take care of the children. When she returned home,
Larry went upstairs and knocked on Le Porsche’s door to “address the situation” with
appellant. Le Porsche refused to get appellant. Larry went back downstairs to the front
of the building where he could see appellant in the window. Larry called to appellant to
come outside, but appellant did not do so. One of Larry’s friends came over to Nicki’s
apartment and talked with Larry for an hour or two. After the friend left, Larry was still
upset about appellant confronting him.
       The Murder
       Sometime before 1:00 p.m. on January 24, 2012, Larry was standing on the porch
of Nicki’s apartment when he saw his friend Kyon (the victim in count 1) walking down
the street. Kyon was with his friend Kyoko (the victim in count 2), whom Larry had not
met before. Larry spent about 30 minutes talking with Kyon and telling him about the
incident the night before.
       Le Porsche then came out onto her balcony and started arguing with Larry.
Appellant was also on the balcony. According to Larry, Le Porsche said to him, “I hope
you die. Somebody going to kill you.” Nicki, who heard the argument from inside her
apartment, testified that Le Porsche said, “Stop fucking with me or you are going to get

                                             3
killed.” Appellant said nothing during the argument. Larry then went inside Nicki’s
apartment to help get the children ready to see their grandmother.
       Kyon and Kyoko were still outside. Kyoko noticed Braden and an unidentified
Black man walking down the street. They walked up the driveway and went upstairs to
Le Porsche’s apartment. Kyon went to Nicki’s apartment to tell Larry about the two
men. Shortly thereafter, Braden, appellant and the unidentified third man came
downstairs and approached Kyoko. Appellant said to Kyoko, “You was part of them.
What you want to do?” Kyoko replied that he had nothing to do with the night before.
Appellant hit Kyoko on the chin. Kyoko then heard five gunshots. Kyoko testified that
one of the shots hit him on the side of the head. He touched the wound, felt blood
dripping, and ran to get help. The three men ran in the other direction. As Kyoko ran, he
saw that Kyon had been shot and was lying in the street.
       Larry also heard gunshots. He opened the apartment door and R. followed him.
Larry saw Braden firing a gun, and said, “Oh, shit. You’re shooting.” Braden then fired
two shots toward Larry and R. Neither shot hit Larry or R.; one shot hit the wall. At
some point, Nicki grabbed R. and another baby and fled to the bathroom. Nicki also
heard a “big bang on the gate,” and then four more gunshots. Appellant and a third man
were near Braden at the time of the shooting. Larry saw the three men take off running.
       Larry heard someone say that somebody had been hit. He went outside and found
Kyon lying down, bleeding. Larry stayed with him until an ambulance and the police
arrived. Kyon died from a gunshot wound to the chest.
       Investigation
       The afternoon of the shooting, investigating officers found bullet fragments on the
driveway and grass near the front of the apartment building, a fresh nick or scratch on the
fence at the front of the property, and blood on the sidewalk near the gate. A single spent
round was found near the front door of Nicki’s apartment. Also that day, Larry identified
appellant from a photographic six-pack as the man he had argued with.




                                             4
      On January 31, 2012, Larry again identified Braden from a photographic six-pack
as the shooter. He also identified Braden in court as the shooter. Kyoko identified both
appellant and Braden at the preliminary hearing.
      Law enforcement records listed an address on Clymar Avenue in Compton as
Braden’s residence, as well as a telephone number beginning with the 424 area code (the
424 phone). On January 31, 2012, Braden was arrested outside that residence and the
424 phone was seized from one of the bedrooms occupied by Braden.
      Police officers obtained a search warrant for the phone records of the 424 phone
and for a second number beginning with the 323 area code (the 323 phone). A cell tower
analysis was done for both numbers.3 That analysis indicated that on January 24, 2012,
the 424 phone was in Compton around 12:20 p.m., and ended up in Torrance at
12:59 p.m. After 1:05 p.m., the phone “pinged” in Torrance, then headed north, “pinged”
off towers in Gardena, and ended up back in Compton. On January 24, 2012, the 323
phone was in Torrance from the morning until approximately 1:05 p.m.. The phone then
began pinging off towers in a northerly direction heading out of Torrance and pinged off
a tower in Gardena. The 323 phone was pinging off the same towers as the 424 phone.
      A review of the phone records indicated that on the previous evening, January 23,
2012, between 10:20 p.m. and 11:40 p.m., the 323 phone called the 424 phone 20 times.
Of those calls, 15 were answered and five were not. On the morning of January 24, 2012,
until about 1:05 p.m., the 323 phone called the 424 phone 16 times. Fifteen of those calls
were answered.
      Gang Evidence
      Los Angeles County Sheriff’s Detective Eric Arias testified as a gang expert. He
was familiar with the Tragniew Park Crips gang (TPC), which claimed territory in the
southwest portion of Compton. He believed that appellant was a member of the TPC


3
       When a call is made from a cell phone, the cell phone’s number bounces or
“pings” off a cell tower. The tower records that it “receives a call” from that phone. A
cell tower analysis establishes that a phone is in the vicinity of a particular tower.


                                            5
gang based on appellant’s tattoos, other members of the gang identifying appellant as a
fellow TPC member, and appellant being identified as a TPC member on a field
investigation card.
       Detective Arias was also familiar with the Capanella Park Pirus gang (CPP), a
Bloods gang which claimed territory north of the TPC gang. He believed that Braden
was a member of the CPP gang based on Braden’s self-identification as a member, his
tattoos, and other members identifying him as a fellow CPP member. The CPP and TPC
gangs are rivals, but tolerated appellant’s and Braden’s rival gang affiliations.
       Detective Arias opined that the subject crimes were committed for the benefit of
the TPC gang, even though Braden fired the gun, because appellant asserted the TPC
gang name in his original confrontation with Larry, Larry’s subsequent attempt to
confront appellant was a sign of disrespect that needed to be dealt with swiftly so that the
gang would not lose credibility, and shooting at someone in broad daylight without a
disguise is the “ultimate benefit” that creates fear and intimidation in the community and
among rival gangs, allowing the gang to commit further crimes.
       Detective Arias explained that in the gang context, the phrase, “Where you from?”
is confrontational. It is generally asked of someone suspected of being a member of a
rival gang, and anticipates a confrontational response. There is no “right answer” to the
question. It is asked to determine whether one will “man up,” and claim his gang. When
a gang member announces his gang, it is also confrontational.
       Defense Evidence
       Appellant did not testify and presented no evidence on his behalf. Braden’s
defense is not relevant here.
                                      DISCUSSION
I. Denial of Motion to Sever Trial
       Appellant contends that the trial court’s denial of his motion to sever his trial from
Braden’s denied him due process.




                                              6
       A. Relevant Background
       Prior to trial, appellant filed a motion to sever on the grounds that a joint trial
would force him to chose between testifying and keeping his brother’s name out of the
trial and because there was a prejudicial association. At the hearing on the motion, the
trial court summarized appellant’s grounds as follows: “Your motion to sever is that they
are brothers and if your client were to testify in this case, it is very hard for him to do so
because then he would be testifying against his brother.” Appellant’s counsel confirmed
“[t]hat’s the gist of it, yeah. . . . [¶] . . . His decision to potentially testify is going to be
heavily influenced by the fact that his brother is sitting next to him and clearly there is a
familial relationship.” The prosecutor responded that the “crime is the same exact crime
and same charges aside from one charge. The fact that [appellant] chose to get his
brother involved in this incident . . . it’s like any other case in this county, if there were
brothers involved . . . [or] two friends involved . . . ”
       The trial court denied the motion, stating: “The same facts, same circumstances,
there is too much commonality. I understand that one of you may have to tiptoe through
the tulips. [Appellant’s counsel], if your client decides to take the stand it is not unusual
for brothers to be tried together.”
       B. Relevant Law
       The Legislature has expressed a preference for joint trials. (People v. Hardy
(1992) 2 Cal.4th 86, 167.) Section 1098 states: “When two or more defendants are
jointly charged with any public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials. . . .” (§ 1098) “But the court may, in
its discretion, order separate trials ‘in the face of an incriminating confession, prejudicial
association with codefendants, likely confusion resulting from evidence on multiple
counts, conflicting defenses, or the possibility that at a separate trial a codefendant would
give exonerating testimony.’” (People v. Avila (2006) 38 Cal.4th 491, 574–575.)
Generally, it is the rule that a trial court must order a joint trial and separate trials are the
“exception.” (People v. Alvarez (1996) 14 Cal.4th 155, 190, quoting People v. Massie
(1967) 66 Cal.2d 899, 917; see also § 1098.)

                                                 7
       “We review a trial court’s denial of a severance motion for abuse of discretion
based on the facts as they appeared at the time the court ruled on the motion. [Citation.]
If the court’s joinder ruling was proper at the time it was made, a reviewing court may
reverse a judgment only on a showing that joinder “‘resulted in ‘gross unfairness’
amounting to a denial of due process.’” [Citation.] Even if the court abused its discretion
in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant
would have received a more favorable result in a separate trial.” (People v. Avila, supra,
38 Cal.4th at p. 575.)
       C. Analysis
       In his opening brief, appellant relies on three reasons why the trial court abused its
discretion in denying his motion to sever.
       One, appellant argues he pointed out to the trial court that his ability to present
exonerating testimony at a joint trial would be impaired. Although his brief does not
identify any potential testimony he might have given, his severance motion states that it
would “behoove” him to testify that he had no idea Braden had a gun or planned to shoot
anyone, and added that during cross-examination in a joint trial he would be asked who
was the shooter. Appellant seizes on the trial court’s comment that his attorney would
have to “tiptoe through the tulips” as an acknowledgment by the court that appellant’s
defense would be negatively impacted by joinder. But appellant would have the same
problems during cross-examination in a separate trial. He would have to explain how
Braden arrived armed and with another man at the apartment complex where appellant
was staying, why appellant confronted Kyoko by asking about the incident the night
before and then hitting him, how this all happened to be followed by Braden shooting at
people, and why appellant did not try to stop his brother from shooting.
       Two, appellant argues his “prejudicial association” with Braden mandated
severance. But as our Supreme Court has noted: “‘[N]either antagonistic defenses nor
the fact that . . . one defendant incriminates the other amounts, by itself, to unfair
prejudice. . . . That different defendants alleged to have been involved in the same
transaction have conflicting versions of what took place, or the extent to which they

                                               8
participated in it, vel non. is a reason for rather than against a joint trial. If one is lying, it
is easier for the truth to be determined if all are required to be tried together.’” (People v.
Hardy, supra, 2 Cal.4th at p. 169, fn. 19, quoting Ware v. Commonwealth (Ky. 1976) 537
S.W.2d 174, 177, quoted in Dawson, Joint Trials of Defendants in Criminal Cases: An
Analysis of Efficiencies and Prejudices (1979) 77 Mich. L.Rev. 1379, 1423.)
       Three, appellant argues that the cell phone record evidence would not have been
admissible in a separate trial because appellant was never connected to the 323 phone.
He claims this evidence against him was irrelevant, inflammatory and exploited by the
prosecutor in closing argument. But we cannot conclude that the cell phone evidence
was so irrelevant or inflammatory as to be excluded as to appellant. The most obvious
and reasonable inference to be drawn from this evidence is that appellant called his
brother and asked for his help in dealing with Larry.
       Even if the trial court erred in denying the motion to sever, any error was
harmless. Indeed, the trial court believed that appellant was more culpable than Braden.
The trial court stated during sentencing: “This case, the whole incident was brought
about by [appellant] even before [Braden]. The evidence bears out that [appellant] is the
one that called . . . out the intended victim at the laundry room . . . . [¶] . . . Then when he
was called out from the second floor where [Le Porsche] was located . . . [appellant]
cowers and does not come out. What does he do? Instead he calls his brother and got his
brother involved. I want to say that the brother is collateral damage. He is more culpable
than his brother. He is the one that initiated the fight and coerced, he is the one [who]
called his brother. When his brother came over he did not know who was the one that did
him wrong. He was the one that had to point out people for his brother to have contact
with and, of course, there are other unintended victims.” Appellant has failed to
demonstrate a reasonable probability that he would have received a more favorable result
in a separate trial. (People v. Avila, supra, 38 Cal.4th at p. 575; see also People v.
Watson (1956) 46 Cal.2d 818, 836.)




                                                9
II. Admission of Le Porsche’s Statement
       Appellant contends that the trial court erroneously admitted Le Porsche’s
statement or threat to Larry and compounded the error by instructing the jurors that they
could treat appellant’s silence as an adoptive admission.4
       Evidence Code section 1221 provides: “Evidence of a statement offered against a
party is not made inadmissible by the hearsay rule if the statement is one of which the
party, with knowledge of the content thereof, has by words or other conduct manifested
his adoption or his belief in its truth.” “‘“There are only two requirements for the
introduction of adoptive admissions: ‘(1) the party must have knowledge of the content
of another's hearsay statement, and (2) having such knowledge, the party must have used
words or conduct indicating his adoption of, or his belief in, the truth of such hearsay
statement.” [Citation.]’ [Citation.] Admissibility of an adoptive admission is
appropriate when “‘a person is accused of having committed a crime, under
circumstances which fairly afford him an opportunity to hear, understand, and to reply,
and which do not lend themselves to an inference that he was relying on the right of
silence guaranteed by the Fifth Amendment to the United States Constitution . . . .”’
[Citation.]” (People v. Combs (2004) 34 Cal.4th 821, 843.)
       With appellant standing next to her on her balcony, Le Porsche stated to Larry
either “I hope you die. Somebody going to kill you” or “Stop fucking with me or you are
going to get killed.” Appellant said nothing. Le Porsche did not testify at trial. Prior to
trial, appellant filed a motion to exclude the statement, which the trial court denied,
finding that the statement “circumstantially provides evidence of intent or knowledge.”
       We agree with appellant that Evidence Code section 1221 is inapplicable here
because Le Porsche’s threat did not refer to appellant nor accuse him of anything. Thus,
appellant had nothing to deny. But we find the statement’s admission was harmless error.



4
       Appellant argues the statement was inadmissible under both Evidence Code
section 1240 (spontaneous utterance) and Evidence Code section 1221 (adoptive
admission). The People agree that the statement was not a spontaneous utterance.

                                             10
       The jury was specifically instructed with CALJIC No. 2.71.5 that “[u]nless you
find that a defendant’s silence and conduct at the time indicated an admission . . . you
must entirely disregard the statement.” We assume that jurors are capable of
understanding, correlating and following all of the instructions given, and that they did
so. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 148; People v. Mills (1991) 1
Cal.App.4th 898, 918; People v. Ervine (2009) 47 Cal.4th 745, 776.) Thus, if “there was
nothing for [appellant] to deny” and “the conditions for the adoptive admission exception
did not exist,” the jury understood that it “must entirely disregard the statement.”
       Additionally, appellant failed to demonstrate how the exclusion of Le Porsche’s
statement would have made it reasonably probable that a result more favorable to him
would have been reached. (People v. Watson, supra, 46 Cal.2d at p. 836.) A defendant’s
“bare-bones assertions fall short of sustaining his heavy burden of showing that the trial
court acted unreasonably in admitting the evidence, and this resulted in a manifest
miscarriage of justice.” (People v. Lepolo (1997) 55 Cal.App.4th 85, 92.) It is unclear
how the exclusion of Le Porsche’s threat to Larry could have resulted in a more favorable
verdict for appellant. She never stated that appellant would do the killing or that he had a
gun. The only person with a gun was Braden, who was not present when the statement
was made, and whose name Le Porsche did not mention.
III. Denial of Motion for New Trial
       Following the jury’s verdict, appellant moved for a new trial on the grounds that
the trial court erred in denying his motions to sever and to exclude Le Porsche’s
statement. On appeal, appellant argues that the trial court abused its discretion because it
did not revisit these issues in the context of the evidence actually produced at trial, but
simply incorporated its pretrial reasons for denying the motions. But a review of the
reporter’s transcript shows that appellant’s counsel based the new trial motion by
“incorporate[ing] my original arguments involving both issues.” Defense counsel stated
two more times that he was incorporating the arguments he made in the pretrial motion.
Because appellant does not point to any evidence adduced at trial that should have
changed the trial court’s initial rulings, appellant has failed to establish an abuse of

                                              11
discretion. (See People v. Lightsey (2012) 54 Cal.4th 668, 729 [“A trial court’s ruling on
a motion for new trial is so completely within that court’s discretion that a reviewing
court will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion”].)
IV. Gang Allegation
       Appellant contends that the evidence was insufficient to support jury’s true finding
on the gang allegation.5
       “‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The same standard applies
to evaluating the sufficiency of the evidence to support a true finding on an enhancement
allegation. (People v. Wilson (2008) 44 Cal.4th 758, 806.) Reversal is not warranted
unless it appears “‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 331.)
       Section 186.22, subdivision (b)(1), provides that “any person who is convicted of
a felony committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members,” shall receive additional punishment. The enhancement
therefore has two prongs—the benefit prong and the intent prong. (People v. Villalobos
(2006) 145 Cal.App.4th 310, 322.)




5
       Appellant also argues that the jury’s true findings on the gang allegations must be
stricken because the jury found these allegations not true as to Braden. Appellant
deduces that the jury must have found the crimes were not gang related. We draw no
conclusions regarding appellant from the jury’s findings as to Braden.

                                              12
       As to the benefit prong, the gang expert opined that the shooting benefited
appellant’s gang because appellant asserted the TPC name in his original confrontation
with Larry; Larry’s subsequent attempt to confront appellant was a sign of disrespect that
needed to be dealt with swiftly so that the gang would not lose credibility; and shooting at
someone in broad daylight without a disguise is the “ultimate benefit” that creates fear
and intimidation in the community and among rival gangs, allowing the gang to commit
further crimes. “Expert opinion that particular criminal conduct benefited a gang by
enhancing its reputation for viciousness can be sufficient to raise the inference that the
conduct was ‘committed for the benefit of . . . a[] criminal street gang.’” (People v.
Albillar (2010) 51 Cal.4th 47, 63; see also People v. Rodriguez (2012) 55 Cal.4th 1125,
1138–1139 [§ 186.22, subd. (b)(1) may apply to lone gang member who commits a gang-
related crime].)
       As to the second prong of the enhancement, all that is required is a specific intent
“‘to promote, further, or assist in any criminal conduct by gang members.’” (People v.
Villalobos, supra, 145 Cal.App.4th at p. 322, italics added.) Detective Arias opined that
the shooting, even though done by Braden, also assisted appellant’s gang’s criminal
conduct because everyone knew the TPC gang was behind the shooting, and the act of
shooting in broad daylight creates fear and intimidation and allows the gang to get away
with future crimes. “A reasonable jury could infer . . . that appellant intended for the
. . . murder to have the predicted effect of intimidating rival gang members and
neighborhood residents, thus facilitating future crimes committed by himself and his
fellow gang members.” (People v. Vazquez (2009) 178 Cal.App.4th 347, 353; In re
Ramon T. (1997) 57 Cal.App.4th 201, 208 [“Appellant’s argument is unavailing. We
first note that Officer Bockrath opined that the crimes in question were, indeed,
committed with such intent”].)
V. Sentencing Errors
       Finally, appellant contends that the trial court committed several sentencing errors.
The People agree with all but one claimed error. As discussed below, we agree with the
parties that the case must be remanded for the limited purpose of resentencing.

                                             13
       We first note that appellant was sentenced to a total term of 80 years plus 60 years
to life determined as follows: On count 1, the trial court imposed a term of 15 years to
life plus a term of 20 years pursuant to section 12022.53, subdivisions (c) and (e)(1) for a
total term of 20 years plus 15 years to life. On counts 3, 6, and 7, the court sentenced
appellant to a consecutive term of 15 years to life pursuant to section 186.22, subdivision
(b)(1)(C), plus a term of 20 years pursuant to section 12022.53, subdivisions (c) and
(e)(1) for a total term of 20 years plus 15 years to life on each count.
       The trial court also assessed a $10,000 restitution fine pursuant to section 1202.4,
subdivision (b), and imposed and suspended a parole revocation fine in the same amount
pursuant to section 1202.45. Pursuant to section 1464 and Government Code section
76000, the court imposed a $1,000 assessment and surcharge to be paid to appellant’s
probation officer in such manner as the officer shall prescribe. In addition, as to each
count, the trial court imposed a court operations assessment of $40, pursuant to section
1465.8, subdivision (a)(1), and a criminal conviction assessment of $30, pursuant to
Government Code section 70373. Pursuant to section 1202.4, subdivision (f), the court
ordered appellant to pay restitution fines of $1,784.12 to Kyoko’s mother and $5,000 to
the Victim’s Compensation and Government Claims Board.
       A. Count 1
       Appellant argues, and the People agree, that the trial court imposed an
unauthorized sentence on count 1 (second degree murder) by imposing a consecutive
sentence of 20 years pursuant to section 12022.53, subdivisions (c) and (e)(1) even
though the jury found not true all of the firearm allegations against appellant on count 1.
Accordingly, on remand the trial court is directed to correct the sentence on count 1 by
striking the 20-year firearm enhancement.
       B. Counts 3, 6 & 7
       Appellant argues, and the People agree, that the trial court erred in imposing both
gang and firearm enhancements on these three counts. Section 12022.53, subdivision
(e)(2) provides that “[a]n enhancement for participation in a criminal street gang . . . shall
not be imposed on a person in addition to an enhancement imposed pursuant to this

                                              14
subdivision, unless the person personally used or personally discharged a firearm in the
commission of the offense.” (Italics added.) It is undisputed that appellant was not armed
during the offenses and was tried as an aider and abetter. Thus, the parties agree that the
trial court should have imposed the 20-year firearm enhancements rather than the 15-
years-to-life gang enhancements on counts 3, 6 and 7.
       Appellant also points out that the sentence range for the crime of shooting at an
inhabited dwelling (count 3) is three, five or seven years. (§ 246.) On remand, the trial
court is to exercise its sentencing discretion on count 3. Additionally, because the
indeterminate life sentences on counts 6 and 7 were improperly enhanced by adding a
minimum eligible parole date of 15 years due to the improper gang enhancement, the trial
court is also ordered to change the sentences on counts 6 and 7 to indeterminate life
sentences. (§ 12022.53, subd. (e)(2).)
       Also with respect to count 3, appellant argues that the sentence should be stayed
pursuant to section 654, subdivision (a) because the attempted murders of Larry and R.
(counts 6 & 7) were an indivisible course of conduct from the shooting at an inhabited
dwelling (count 3). Appellant points out that count 3 named no victims and he asserts
that Larry and R. were the only victims of count 3. But appellant ignores the evidence
establishing that Nicki was also in the apartment at the time of the shooting. After she
heard gunshots, she grabbed R. and another baby and fled to the bathroom. Because
there were other victims, consecutive sentencing was appropriate. (People v. Miller
(1977) 18 Cal.3d 873, 885.)
       C. Monetary Assessment
       As noted above, appellant was ordered to pay court operation and criminal
conviction assessments and restitution fines. Appellant argues, and the People agree, that
the trial court’s imposition of a $1,000 assessment and surcharge pursuant to section 1464
and Government Code section 76000 was unauthorized. These statutes levy additional
penalties upon every fine, penalty or forfeiture imposed and collected by the courts for all
criminal cases. But these statutes expressly state that the penalties they impose do not
apply to any restitution fines. (§ 1464, subd. (a)(3)(A); Gov. Code, § 76000, subd.

                                            15
(a)(3)(A).) The penalties imposed by section 1464 and Government Code section 76000
also do not apply to the $40 court operations assessment imposed under section 1465.8,
subdivision (a)(1) or to the $30 criminal conviction assessment imposed under
Government Code section 70373, subdivision (a)(1). (See § 1465.8, subd. (b); Gov.
Code, § 70373, subd. (b).) Accordingly, upon remand the $1,000 assessment and
surcharge must be stricken.
                                      DISPOSITION
       The matter is remanded to the trial court for the limited purpose of resentencing
appellant. Upon remand, the trial court is directed to: strike the 20-year firearm
enhancement on count 1; strike the 15-years-to-life gang enhancements on counts 3, 6
and 7; exercise its sentencing discretion on the sentence range for count 3; modify the
sentences on counts 6 and 7 to indeterminate life sentences; and strike the $1,000
assessment and surcharge. The trial court is then directed to send a copy of the corrected
abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                          __________________________, J.
                                                ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



____________________________, J.
           CHAVEZ

                                            16
