People v. Quirino, 031519 CAAPP4-3, G050926

Docket Nº:G050926
Opinion Judge:IKOLA, J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY QUIRINO, Defendant and Appellant.
Attorney:Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Peter Quon, Jr., and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Panel:WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.
Case Date:March 15, 2019
Court:California Court of Appeals
 
FREE EXCERPT

THE PEOPLE, Plaintiff and Respondent,

v.

RICHARD ANTHONY QUIRINO, Defendant and Appellant.

G050926

California Court of Appeals, Fourth District, Third Division

March 15, 2019

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 14CF1858, M. Marc Kelly, Judge. Affirmed in part, reversed in part and remanded with directions.

Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Peter Quon, Jr., and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

Defendant Richard Quirino appeals following his convictions by jury on charges of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); counts 1 & 4), 1 possession of methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a); count 2), and second degree robbery (§§ 211, 212.5, subd. (c); count 3). The jury also found true allegations that defendant committed counts 2 and 4 for the benefit of a gang (§ 186.22, subd. (b)(1) and personally used a firearm in the commission of count 3 (§ 12022.53, subd. (b)). The court subsequently found true an allegation that defendant sustained a prior prison term. (§ 667.5, subd. (b).)

The court sentenced defendant to an aggregate state prison term of 18 years as follows: (1) the upper term of five years for the second degree robbery count, plus 10 years for the firearm enhancement; (2) a consecutive term of one year (one-third the midterm) for the possession of methamphetamine count, plus one year for a gang enhancement; and (3) one year for a prior prison term enhancement. Sentences on counts 1 and 4 were stayed pursuant to section 654.

Quirino does not challenge his convictions, which stem from two separate incidents. Instead he challenges the sufficiency of the evidence to support findings that he committed the firearm possession in the first incident, and the methamphetamine possession in the second incident, for the benefit of a criminal street gang. He also contends his sentence enhancement for a prior prison term under section 667.5, subdivision (b) must be set aside because the earlier felony for which the prison term was served has since been reduced to a misdemeanor pursuant to Proposition 47, an initiative passed by the California voters in November 2014.

Finally, Quirino contends the court erred by imposing a $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5. He points out the statute applies only to specified drug offenses, not including the one he was convicted of. The Attorney General concedes the imposition of the laboratory fee was erroneous, but disputes Quirino's other contentions.

On August 15, 2016, we issued an opinion reversing the judgment in part and remanding the case to the trial court with directions to strike the laboratory fee and resentence Quirino in accordance with our opinion. We agreed with Quirino that the evidence was insufficient to support his gang enhancements. We also agreed with Quirino's assertion that the reduction of his earlier felony to a misdemeanor pursuant to Proposition 47 means that offense is no longer eligible to support imposition of a prior prison enhancement under section 667.5, subdivision (b).

On October 26, 2016, the California Supreme Court granted review and, on September 26, 2018, transferred the matter to us “with directions to vacate [our] decision and reconsider the cause in light of [Senate Bill No.] 620 (Stats. 2017, ch. 682).” Senate Bill No. 620 (S.B. 620) took effect on January 1, 2018 and provides trial courts with discretion to strike or dismiss firearm enhancements, including the one imposed in this case, in the interest of justice.

On October 5, 2018, pursuant to the direction by the Supreme Court, we vacated our prior decision. We now reissue our prior opinion (which had not addressed the firearm enhancement because the issue was not raised). In addition to our prior directions to the trial court on remand, we direct the court to exercise its discretion as to whether to strike the firearm enhancement. In all other respects, our decision regarding Quirino's claims of error remains the same as the California Supreme Court's order does not affect the issues we previously considered.

FACTS

The first incident occurred in the afternoon of November 11, 2011. The victim was riding a bicycle along the Santa Ana riverbed trail when he passed Quirino and a younger male, also riding bicycles. Quirino, who was wearing a red baseball cap, then rode up next to the victim and forced him to stop by grabbing his backpack. Quirino told the victim “now you‘re fucked up, ” and lifted his shirt to show a wooden-handled revolver tucked into his waistband. He then demanded the victim “give me all your fucking money, ” and took the victim's wallet from his back pocket. The victim gave Quirino his backpack as well, and noted Quirino's breath smelled of alcohol.

Quirino told the victim he needed the money for his sick mother, warned him not to call the police, and rode away. The younger male who had been with Quirino when the victim first rode by, stayed about 80 feet away from Quirino and the victim during the robbery. After Quirino and his friend departed, the victim called the police.

The second incident occurred 12 days later, on November 23, 2011. Police officers were patrolling an area claimed by a criminal street gang - about one-half mile from the river trail where the earlier robbery had taken place. When the officers spotted Quirino, and told him to stop, he ran away. The officers chased him and then shot him with a taser as he attempted to scale a chain link fence. After the officers subdued Quirino, they searched him and found a loaded.22 caliber revolver, a baggie containing five grams of methamphetamine, and a syringe. The officers also seized a light blue bandana that Quirino had been wearing around his neck, as well as a gang registration notification with his name on it.

Based on Quirino's resemblance to the robber described by the victim in the first incident, plus the proximity of the two incidents, Quirino was identified as a possible suspect in the first incident. He was later identified by the victim as the robber.

Quirino was charged with one count of second degree robbery and one count of being a felon in possession of a firearm in connection with the first incident, and one count of possessing methamphetamine while armed and one count of being a felon in possession of a firearm in connection with the second incident.

At trial, the prosecution's gang expert testified about Hispanic gangs generally, and about gangs in the City of Santa Ana in particular. He stated that Hispanic gangs are “turf oriented”...

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