Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 09CM2415 James T. LaPorte, Judge.
Scott N. Cameron, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P.J.
INTRODUCTION
Appellant Jose Carbajal was convicted after jury trial of being a felon in possession of a firearm (count 1), willfully discharging a firearm with gross negligence (count 2) and participating in a criminal street gang (count 3). (Pen. Code, §§ 12021, subd. (a)(1), 186.22, subd. (a), 246.3, 1192.7, subd. (c).) The jury found true special allegations that counts 1 and 2 were committed for the benefit of a criminal street gang, and one prior prison term allegation. (§§ 186.22, subd. (b)(1), 667.5, subd. (b).) Appellant was sentenced to an aggregate term of nine years eight months.
All statutory references are to the Penal Code unless otherwise specified.
Appellant raises four claims of error: (1) the trial court erred by allowing defense counsel to waive his presence at the arraignment on the amended information; (2) count 2 is not supported by substantial evidence; (3) the gang expert offered inadmissible opinion testimony; and (4) section 654 prohibited imposition of separate punishment for counts 1 and 2. None of these arguments is persuasive; we will affirm.
FACTS
A party was held on the night of July 26, 2009, at Anadina Perez’s residence in Hanford. Anadina’s sister-in-law, Christina Delacruz, and Franky Jacquez attended the party. Franky was associated with the Fresno Bulldogs (Bulldogs) gang, and Christina’s husband, Arcadio Delacruz, formerly belonged to this gang. The Bulldogs are rivals with the South Side Locs. Christina testified Nortenos were not invited to the party.
All dates refer to 2009 unless otherwise specified.
Solely to avoid confusion, some individuals will be referred to by their first names. No disrespect is intended or implied by this informality.
The gang expert testified Aracadio was a Bulldogs drop out.
Shortly after midnight, Hanford Police Officer Frank Martinez responded to a dispatch concerning a possible drive-by shooting at Anadina’s house. He interviewed Anadina first. She told him she was in the bedroom when she heard someone yell that a fight was occurring. Anadina said that she ran out to the front lawn where she saw a Hispanic man standing on the southeast corner of her property. The man was holding a handgun. The man raised his right arm up into the air and fired two shots. Anadina said the man had not been invited to the party but had arrived along with some invited guests. The man had been in a physical disturbance with Christina. Anadina told Officer Martinez that the male had acne on his face and long hair that was up in a bun. The man was wearing blue jeans and a dark colored shirt. Anadina said earlier that evening the male had a red shirt draped over his shoulders. Officer Martinez broadcast the man’s description to other police units.
Officer Martinez then interviewed Christina. Christina said Franky approached her during the party and told her a man “wanted to talk to him later.” Christina thought the man might have a problem with her husband, who was not at the party. Christina told Officer Martinez that she had seen the man around the neighborhood and he was a member of the South Side Locs. Christina approached the man and asked him why he needed to speak to Franky. The man said that it was none of her business. She insisted that if the problem involved her husband, he needed to talk to her. The man repeated that it was not her business. Christina became angry and struck the man. The man hit Franky, who was standing nearby. Franky fell to the ground and the man repeatedly punched him. Christina tried to pull the man off Franky but the man turned and punched her in the lower jaw, causing a cut lip. Christina said the man jumped over the backyard fence. “Several moments later, ” she heard a loud popping sound. Officer Martinez testified that he interviewed Franky, who told him that he had been in an altercation with a man.
Officer Martinez testified he observed a bloody cut to the lower right side of Christina’s lip and swelling above Franky’s right eye and temple area. He took a photograph of Christina’s face, which was admitted at trial.
At trial, Anadina, Christina, and Frankie testified they were too drunk to remember anything about what happened at the party; they did not remember talking with police officers or recall identifying appellant. Officer Martinez testified neither Anadina nor Christina showed any signs of being intoxicated.
Kings County Sheriff’s Deputy Taylor Lopes was driving a patrol car in the area the suspect had last been seen. He saw appellant, who generally fit the description of the suspect. Deputy Lopes pulled his patrol car behind appellant, who tensed as though deciding whether to run. When Deputy Lopes turned on his spotlight, appellant reached towards the waistband of his jeans. Appellant complied with the deputy’s order to lie on the ground and was detained without resistance. He was not armed.
A few minutes later, Officer Martinez arrived with Christina and Anadina to conduct an infield show up. Anadina identified appellant as the shooter. Christina identified appellant as the man who was involved in the altercation.
A gunshot residue test performed on appellant’s hands was negative. When appellant was taken into custody, he was dirty and wet. A criminalist testified sweat and dirt can remove gunshot residue from a shooter’s hand.
A shell casing was found near the location where the shooting occurred. Deputy Lopes found footprints matching appellant’s that led backwards from the location where appellant was detained towards the area where the shooting occurred. Anadina and Christina pointed out a red shirt in the backyard that they said belonged to appellant.
A gang expert testified the South Side Locs is a subset of the Nortenos criminal street gang. The South Side Locs identify with the color red. The gang expert opined appellant was an active member of the South Side Locs and ranked as a gang leader. The gang expert opined that appellant’s actions at the party benefitted “himself and his own particular gang which is known to the victims of this incident also.”
DISCUSSION
I. Defense Counsel’s Waiver of Appellant’s Personal Appearance at His Arraignment on the Amended Information was not Prejudicial.
A. Facts.
The information was filed on August 21. It contained the three substantive offenses, a prison prior and a strike allegation. On August 24, appellant pled not guilty on all counts and denied the special allegations.
A pretrial hearing was held on September 11. The minutes reflect that defendant was present during this hearing. The prosecutor offered appellant a plea bargain. In exchange for a guilty plea to violating section 246.3 (grossly negligent discharge of a firearm) and admitting the prison prior, appellant would be sentenced to four years and the remaining charges would be dismissed. During discussion of the plea bargain, the prosecutor explained he had realized appellant’s prior conviction did not qualify as a strike offense. The court said to defense counsel, “[Y]ou’re going to have your client consider that?” Defense counsel replied, “I’m going to have my client consider it. I’ll talk to him. I will review the preliminary hearing transcript. I would just like to make sure that at that time everything is in the mix.”
Appellant subsequently rejected the plea offer. A pretrial hearing was held on December 21. The minutes reflect appellant was present for this hearing and there was “no resolution” of the case.
On January 8, 2010, an amended information was filed. The amended information removed the prior strike allegation and added gang enhancements to the firearm possession and firearm discharge counts (§ 186.22, subd. (b)).
A trial confirmation hearing was held on this date. The minutes for this hearing reflect defendant was confined “[i]n holding cell, ” and defense counsel “waives defendant’s appearance.” At the outset of the hearing, defense counsel stated appellant’s “appearance is waived, we’re confirming for Monday.” The prosecutor stated the court had been “tendered … with an amended information.” The court asked defense counsel, “You’re waiving further advisement of statutory and constitutional rights, entering not guilty on behalf of your client?” Defense counsel replied, “Yes.” The court asked, “Also waiving any preliminary hearing?” Again, defense counsel replied, “Yes.” Next the court obtained a time estimate of two to three days from counsel. During discussion of appellant’s potential prison exposure, defense counsel said, “It’s not a life case.” The court replied, “I think the strike was dropped.” Defense counsel replied, “Right.”
B. Appellant was not prejudiced by his absence from the arraignment.
Appellant argues defense counsel’s waiver of his personal appearance at the arraignment on the amended information was an “egregious” mistake and his absence from the arraignment constitutes reversible error. We are not persuaded. Assuming for purposes of this discussion only that the issue was not waived, appellant’s arguments fail for lack of prejudice.
A criminal defendant’s right to be personally present at trial is guaranteed by federal and state constitutions. (U.S. Const., 6th & 14th Amends.; Cal. Const., art I, § 15.) (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202; United States v. Gagnon (1985) 470 U.S. 522, 526.) “Sections 977 and 1043 implement the state constitutional protection.” (Gutierrez, supra, at p. 1202.) In relevant part section 977, subdivision (b)(1) provides that in felony cases, “the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence.” The defendant shall be present at other proceedings “unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present ….” (§ 977, subd. (b)(1).) In other words, “section 977 requires a defendant to be present at the five fundamental proceedings and entitles him to be present at all others.” (People v. Ochoa (2001) 26 Cal.4th 398, 435.)
“[S]ection 1043 provides that a felony defendant ‘shall be personally present at the trial, ’ (id., subd. (a)), but that the trial may continue in the defendant’s absence if (1) the defendant persists in disruptive behavior after being warned (id., subd. (b)(1)); (2) the defendant in a noncapital case is voluntarily absent (id., subd. (b)(2)); or (3) the defendant waives his right to be present pursuant to section 977 (§ 1043, subd. (d)).” (People v. Davis (2005) 36 Cal.4th 510, 531 (Davis).)
Appellant asserts his constitutional rights to be present at the arraignment cannot be waived. Our Supreme Court has decided otherwise. “‘“[A]s a matter of both federal and state constitutional law, … a capital defendant may validly waive presence at critical stages of the trial.” [Citation.]’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 966 (Weaver); see also Davis, supra, 36 Cal.4th at p. 531 and People v. Lang (1989) 49 Cal.3d 991, 1026.) “Permitting waiver … is consistent with the solicitude shown by modern jurisprudence to the defendant’s prerogative to waive the most crucial of rights.” (People v. Robertson (1989) 48 Cal.3d 18, 61.)
Since defense counsel stated appellant waived his right to be present at the arraignment on the amended information, we must assess the validity of the waiver. (See, e.g., Davis, supra, 36 Cal.4th at pp. 531-532.) To validly waive the federal constitutional right to be present at a crucial aspect of criminal proceedings, the waiver must be voluntary, knowing and intelligent. (Davis, supra, 36 Cal.4th at p. 531.) In Davis, our Supreme Court determined defense counsel’s oral waiver of the defendant’s presence at a pretrial hearing was not valid under the federal constitution because “[a]ll the record shows is that defense counsel represented to the court that counsel had discussed the hearing with defendant and that defendant would waive his presence. There is no evidence that defense counsel informed defendant of his right to attend the hearing; nor is there evidence that defendant understood that by absenting himself from the hearing he would be unable to contribute to the discussion of the contents of the tape recording.” (Id. at p. 532.) Therefore, “we cannot conclude that defendant knowingly and intelligently waived his right to presence at the hearing.” (Ibid.)
As in Davis, there is insufficient evidence in the record before us to find appellant knowingly and intelligently waived his constitutional rights to be present at the arraignment on the amended information. All the record shows is that appellant was in the holding cell and defense counsel informed the court appellant waived his personal presence at the hearing. Defense counsel then waived advisement of statutory and constitutional rights and entered a not guilty plea on appellant’s behalf. There is no evidence defense counsel informed appellant of his rights to attend the proceeding, be advised of his rights and personally enter a not guilty plea. There is no evidence appellant understood the consequences of absenting himself from the arraignment. Therefore, we cannot find that appellant knowingly and intelligently waived his federal constitutional presence right.
Additionally, defense counsel’s waiver was ineffective for purposes of California state law. Section 977 requires a felony defendant to be personally present for certain proceedings, one of which is his arraignment. A defendant may not waive his statutory right to be present during the proceedings specifically listed in section 977. (People v. Jackson (1996) 13 Cal.4th 1164, 1211.) Waiver is permitted for “all other proceedings” if the defendant executes a written waiver in open court. (§ 977, subd. (b).) The trial court was not allowed to accept defense counsel’s oral waiver of appellant’s presence at the arraignment on the amended information. (Jackson, supra, 13 Cal.4th at p. 1211.)
Since appellant’s waiver was not valid, one could reason that this situation is analogous to a case in which the case was tried as if there had been no arraignment or plea on the amended information. Yet, this line of reasoning does not advance appellant’s argument because it is settled that “[w]here … there is no arraignment or plea but the case is tried as if a ‘not guilty’ plea has been entered, no miscarriage of justice results from the procedural error. [Citation.]” (People v. Grigsby (1969) 275 Cal.App.2d 767, 772-772.)
We turn to the question of prejudice. Appellant asserts the federal constitutional error is prejudicial per se. Again, we disagree. “Under the federal Constitution, error pertaining to a defendant’s presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23.” (Davis, supra, 36 Cal.4th at p. 532.)
Failure to comply with the presence requirements of section 977 is an error “of a purely statutory dimension” (People v. Jackson, supra, 13 Cal.4th at p. 1211) and the judgment will be reversed “only if we can conclude ‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (People v. Watson (1956) 46 Cal.2d 818.” (Ibid.; see also, e.g., Weaver, supra, 26 Cal.4th at p. 968.)
Appellant argues he was prejudiced by his absence at the arraignment because he was denied an opportunity to plead guilty and seek a mitigated sentence by acknowledging his guilt at an early stage in the criminal process. The record does not support this contention. Appellant rejected a plea bargain with a four-year sentence a few weeks before the amended information was filed. The amended information removed a strike allegation but it added gang enhancements to two counts. Appellant correctly recognizes the new gang enhancements caused his “sentencing exposure to be greater under [the] amended information as compared to the original information.” The fact that appellant refused a plea bargain on the original information contradicts any serious contention that he wanted to plead guilty to all the charges in the amended information, because this would have resulted in more prison time than the four-year deal he rejected. Thus, it is not reasonably probable that appellant’s absence at the arraignment on the amended information affected the verdict. In addition, the record does not show defense counsel was unprepared to contest the new gang enhancements at trial or that appellant was misled in any way concerning the charges and enhancements he faced. Therefore, we hold appellant’s absence from the arraignment on the amended information is “harmless beyond a reasonable doubt. [Citation.] It follows that it is not ‘“reasonably probable”’ that a result more favorable to defendant would have been reached had he been present.” (Davis, supra, 36 Cal.4th at p. 534 [defendant’s absence from pretrial hearing was harmless]; People v. Robertson, supra, 48 Cal.3d at p. 62 [defendant’s absence during imposition of sentence was harmless]; Weaver, supra, 26 Cal.4th at p. 968 [defendant’s absence during part of the sanity phase of trial was harmless]; People v. Jackson, supra, 13 Cal.4th at pp. 1210-1211 [defendant’s absence during one day of trial was harmless].)
Appellant’s related ineffective assistance claim is equally unsuccessful. Appellant’s contention that he was not required to prove prejudice has no merit. He was not denied the assistance of counsel at a critical stage of the proceeding affecting the fairness of his trial. There is no likelihood that the verdict is unreliable because of his absence at the arraignment on the amended information. Therefore, appellant bears the burden of proving both deficient performance and a reasonable probability of a more favorable outcome. (People v. Alexander (2010) 49 Cal.4th 846, 888.) We may resolve this point on the prejudice prong alone. (In re Jackson (1992) 3 Cal.4th 578, 604.) As explained above, appellant’s absence from the proceeding did not affect the verdict or cause him any tangible detriment. Therefore, the ineffective assistance claim fails for lack of prejudice.
II. Count 2 is Supported by Substantial Evidence.
Next, appellant argues his conviction for active participation in a criminal street gang must be reversed for insufficiency of the evidence. His argument is predicated on the premise that a defendant cannot be convicted of violating section 186.22, subdivision (a), if he is the sole perpetrator in a crime that did not involve felonious conduct by other members of a criminal street gang. Appellant acknowledges that in People v. Ngoun (2001) 88 Cal.App.4th 432, 434-436 (Ngoun), and People v. Salcido (2007) 149 Cal.App.4th 356, 363-370 (Salcido), this court concluded section 186.22, subdivision (a), may be violated when one acts alone as the sole perpetrator. Our reasoning and result in those cases was accepted and adopted by Division Two of the Court of Appeal, Fourth Appellate District, in People v. Sanchez (2009) 179 Cal.App.4th 1297, 1305-1308.
Appellant contends Ngoun and Salcido were wrongly decided and “the jury was required to find beyond a reasonable doubt that appellant either aided and abetted others, or acted as a principle [sic] aided by others, in either possessing the firearm or discharging the firearm.” He supports this position with a single case emanating from the Third District Court of Appeal: People v. Rodriguez, S187680, formerly published at 188 Cal.App.4th 722. On January 12, 2011, our Supreme Court granted a petition for review in that caseto consider the question whether a defendant who is an active participant in a criminal street gang may be found guilty of violating section 186.22, subdivision (a), if he, acting entirely alone, commits a felony and there is no other evidence indicating the gang had anything to do with the felony.
Until and unless we are instructed otherwise by our Supreme Court, we will adhere to our holdings in Ngoun and Salcido, which we believe were correctly decided. Since a sole perpetrator acting alone can violate section 186.22, subdivision (a), appellant’s challenge to the sufficiency of the evidence fails. Appellant does not otherwise challenge the adequacy of proof supporting the guilty verdict on count 2; therefore, we will uphold the conviction.
III. Appellant’s Claim that the Court Erroneously Admitted Opinion Testimony on an Ultimate Issue was Forfeited by Absence of Contemporaneous Objection on the Grounds Raised on Appeal.
A. Facts.
Hanford Police Officer Jennifer Donner testified for the People as a gang expert. At the end of the direct examination, the prosecutor asked, “Do you have an opinion as to what [appellant] did at the Bonnieview address back in July of ‘09, do you have an opinion as to whether that benefited the gang structure as a whole?” Defense counsel stated, “I am going to object to that.” The court said, “Overruled. Answer the question if you can.” Officer Donner answered, “Yes, I do. I feel that that was actually for the benefit of and the association with a Norteno criminal street gang.” The prosecutor asked a follow-up question: “And how about did it benefit himself as well?” No objection was interposed to this question. Officer Donner answered, “Benefited himself and his own particular gang which is known to the victims of this incident also.” At this point, the prosecutor stated she did not have anything further. Defense counsel said, “I have no questions, your Honor.” The gang expert was dismissed subject to recall.
B. Appellant’s arguments were not preserved for appellate review.
Appellant argues the trial court abused its discretion by allowing the gang expert to opine that appellant’s actions at Anadina’s house benefitted the gang. Appellant also asserts admission of this testimony violated his federal constitutional due process and jury trial rights (U.S. Const., 5th, 6th & 14th. Amends.). As will be explained, these points were not preserved for appellate review because objection was not interposed on these grounds at trial.
“‘No procedural principle is more familiar to [the United States Supreme Court] than that a constitutional right, ’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” (United States v. Olano (1993) 507 U.S. 725, 731.) This principle is codified at Evidence Code section 353, subdivision (a). “Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.” (People v. Mattson (1990) 50 Cal.3d 826, 854.) The contemporaneous objection rule applies to claims of state and federal constitutional error. (People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10.)
“… Over the years, cases have used the word [waiver] loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. ‘[T]he terms “waiver” and “forfeiture” have long been used interchangeably. The United States Supreme Court recently observed, however: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ [Citations.]” [Citation.]’ [Citation.]” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371; People v. Chaney (2007) 148 Cal.App.4th 772, 777, fn. 2.)
In People v. Dorsey (1974) 43 Cal.App.3d 953 (Dorsey), the defendant objected at trial on hearsay grounds to admission of testimony concerning his bank records. The objection was overruled. On appeal, he argued this testimony violated the best-evidence rule. The appellate court found the issue was not preserved for review, writing: “The failure to state the specific ground upon which an objection rests waives appellate review of the objection. (Evid. Code, § 353, subd. (a).)” (Id. at p. 959.) The court also concluded defects in the foundation supporting the contested testimony had been forfeited. It explained that the contemporaneous objection rule “is particularly true where, as in the instant case, the objection easily could have been cured by the party offering the testimony if the specific reason for the objection had been stated to the trial court. [Citation.] The only apparent defect in the foundation required by Evidence Code section 1271 was in the failure of Putnam to testify as to the mode and time of preparation of the bank statements. This oversight obviously could have been remedied if appellant’s counsel had objected on that specific ground; his failure to do so should prevent his asserting this ground on appeal.” (Id. at p. 960.)
Here, defense counsel stated he objected to the prosecutor’s question eliciting the testimony challenged on appeal. However, defense counsel did not provide any legal basis for the objection. Defense counsel did not assert that the question called for improper opinion testimony on an ultimate question. He did not contend the prosecutor was required to phrase the question in the form of a hypothetical. Defense counsel did not interpose any federal or state constitutional ground for the objection. He did not assert the gang expert’s opinion on gang benefit violated his due process or fair trial rights. Just as in Dorsey, the alleged error in the form of the prosecutor’s questions is an oversight that “obviously could have been remedied if appellant’s counsel had objected on that specific ground.” (Dorsey, supra, 43 Cal.App.3d at p. 960.) Since an objection was not lodged for decision at trial on the same grounds that are raised on appeal, appellant forfeited direct appellate review of these points and we reject them on this basis. (Id. at pp. 959-960; People v. Visciotti (1992) 2 Cal.4th 1, 51-52 [claims that prosecutor’s questions were an improper inquiry into inadmissible evidence and they exceeded scope of direct were forfeited because defendant objected at trial on different grounds]; People v. Daniels, supra, 176 Cal.App.4th at p. 320, fn. 10 [constitutional claims not preserved because defendant did not object on this ground at trial]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 2534, fn. 3] [right to confrontation may be forfeited by failure to object to the offending evidence].)
IV. Section 654 did not Prohibit Imposition of Separate Punishment for Counts 1 and 2.
A. Facts.
At sentencing, appellant argued section 654 prohibited imposition of separate punishment for counts 1 and 2. Citing People v. Jones (2002) 103 Cal.App.4th 1139 (Jones), the court rejected this argument. It found “the evidence would seem to suggest that Mr. Carbajal possessed the weapon first and subsequently fired it after he had been at the party for some period of time. On that basis the Court would find that Count 1 is not [section] 654 to Count 2.” The court also found, “Count 1 does not have the same operative facts as Count 2.”
The court sentenced appellant on count 2 to the upper term of three years, plus a consecutive term of five years for the gang enhancement and one year for the prison prior. On count 1, he was sentenced to eight months plus a concurrent term of three years for the gang enhancement. Counts 1 and 2 were ordered to run consecutively. A three-year term for count 3 was imposed and stayed pursuant to section 654.
B. Section 654 was correctly applied.
Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Ibid.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
Whether a course of conduct is indivisible depends on a defendant’s intent and objective, not temporal proximity of offenses. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.) “The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (Jones, supra, 103 Cal.App.4th at p. 1143.)
In Jones, supra, 103 Cal.App.4th 1139, separate punishment for felony firearm possession and for assault was upheld where defendant’s “possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling.” (Id. at p. 1147.) Appellant argues Jones is distinguishable because the record does not contain any direct proof that he possessed the firearm prior to the shooting. We are not convinced. There is ample circumstantial evidence from which the trial court reasonably could conclude appellant brought the gun with him. Appellant walked alone into a rival gang’s territory flashing his colors. He then assaulted two people before jumping a fence, moving to another location, and firing the gun two times. It can reasonably be inferred from appellant’s conduct that he brought the gun with him to the party. There is no evidence showing that he hid the gun somewhere near Anadina’s house and armed himself after the fight. Appellant did not fortuitously come into possession of the gun at the instant he discharged it. (See, e.g., People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) Therefore, we conclude the trial court properly found section 654 does not bar imposition of separate punishment for counts 1 and 2. Since the sentence was not unauthorized, it did not infringe appellant’s federal constitutional due process rights.
C. Appellant’s jury trial right was not infringed.
Appellant also argues under Apprendi v. New Jersey (2000) 530 U.S. 466, he had a federal constitutional right to a jury determination of his intent and objectives. In People v. Morelos (2008) 168 Cal.App.4th 758 (Morelos), we resolved this point adverse to appellant’s position. We explained that in People v. Black (2005) 35 Cal.4th 1238, 1263-1264, our Supreme Court held that recent decisions by the United States Supreme Court addressing the scope of the federal constitutional jury trial right did not “undermine[] the vitality of California case law rejecting Sixth Amendment challenges to trial court findings that multiple crimes did not arise from an indivisible transaction pursuant to a single objective.” (Morelos, supra, 168 Cal.App.4th at p. 770.) Therefore, “the doctrine of stare decisis obliges us to reject” appellant’s contention that the Sixth Amendment’s requirement of jury findings, as explained in Cunningham v. California (2007) 549 U.S. 270, applies to section 654 determinations. (Morelos, supra, at p. 770.) Appellant has offered no convincing rationale persuading us to depart from our holding in Morelos. Therefore, we conclude imposition of separate sentences for counts 1 and 2 did not infringe appellant’s jury trial right. (Ibid.; see also People v. Cleveland, supra, 87 Cal.App.4th at pp. 269-271 [section 654 is a sentencing reduction statute so Apprendi’s rationale does not apply]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [same].)
Apprendi v. New Jersey, supra, 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; United States v. Booker (2005) 543 U.S. 220.
V. A Corrected Abstract Must be Prepared Because Appellant’s Name is Misspelled.
Upon review of the record, this court discovered that appellant’s name is misspelled as “Cabajal” in the minutes of the February 16, 2010 sentencing hearing and the abstract of judgment filed on March 9, 2010. This is obviously a clerical error. The appellate court possesses jurisdiction to order the trial court to prepare a new abstract accurately reflecting the sentence that was orally imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) This includes the inherent authority to order the trial court to correct a clerical error by preparing a new abstract that accurately reflects the correct spelling of appellant’s last name. Therefore, we will order preparation of a corrected abstract.
DISPOSITION
The judgment is affirmed. The superior court is ordered to prepare an amended abstract of judgment reflecting the name of the defendant as “Jose Carbajal.” The superior court is ordered to transmit a certified copy of the corrected abstract of judgment to the appropriate authorities and to the parties.
WE CONCUR: KANE, J., POOCHIGIAN, J.