Opinion
C081034
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JORGE EDUARDO CASTANEDA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F03781)
Defendant Jorge Eduardo Castaneda fired five shots at a vehicle, one of which hit the victim in the head and left him in a persistent nonresponsive state. A jury convicted defendant of discharging a firearm at an occupied motor vehicle (Pen. Code, § 246). The jury also found true the allegations defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d), and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)). The trial court sentenced defendant to state prison to serve 32 years to life with the minimum term calculated under section 186.22, subdivision (b)(4)(A).
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the trial court lacked jurisdiction because the prosecution never filed an information and he was never arraigned on an information, (2) he received ineffective assistance of legal counsel because his trial attorney did not object to a portion of the prosecutor's closing argument regarding the law of corroboration, (3) his Confrontation Clause rights were violated because case specific gang-related hearsay was admitted in violation of the California Supreme Court's holding in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), (4) he received ineffective assistance of counsel because his trial attorney did not challenge the prosecution's introduction into evidence of a photo showing defendant with the word "shooter" written on it, (5) the trial court erred in failing to instruct the jury on the lesser included offense of grossly negligent discharge of a firearm (§ 246.3), (6) the cumulative effect of the claimed trial errors constituted a denial of his due process rights, and (7) the post-sentencing amendment of section 12022.53, subdivision (h), requires a remand for resentencing.
The Attorney General asserts the trial court erred in imposing a prison sentence of 32 years to life. According to the Attorney General, the California Supreme Court's decision in People v. Jones (2009) 47 Cal.4th 566 (Jones) requires that defendant be sentenced to serve a term of 40 years to life in state prison.
We conclude that, properly viewed, the record establishes an information was filed and defendant was arraigned on that information. Defendant's trial attorney had reasonable tactical grounds for foregoing an objection during the prosecution's closing statements regarding corroboration. Although the gang expert's testimony preceded the Supreme Court's guidance in Sanchez, supra, 63 Cal.4th 665, the testimony in this case did not violate defendant's Confrontation Clause rights. Even if defendant's trial attorney was ineffective for not objecting to the prosecution's identification evidence, the error was harmless. The trial court did not err in declining to instruct on grossly negligent discharge of a firearm because, under the facts of this case, no jury could have reasonably convicted defendant of the lesser but not the greater offense.
We decline to remand this case for resentencing under section 12022.53, subdivision (h), because the record shows the trial court would not have exercised its discretion to strike the enhancement. Having rejected defendant's contentions, there is no cumulative prejudice from defendant's claimed trial errors. However, we conclude the trial court erred by imposing a prison sentence of 32 years to life when the correct sentence is 40 years to life. Accordingly, we affirm defendant's convictions and modify his sentence so that his minimum period of incarceration under section 186.22, subdivision (b)(4), is 40 years to life.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
On May 24, 2013, F.R. was driving his car in Sacramento. F.R. had three passengers: his friend, E.G.; the victim; and the victim's girlfriend. F.R. took a wrong turn near Bell and Bollenbacher Avenues. There, F.R. saw a group of people who would not get out of the road. F.R. slowed down so he would not hit anyone in the road. "And then somebody said something." F.R. kept driving until he reached a stop sign. Realizing he had gone the wrong way, he turned around and again encountered the group of people in the street. F.R. testified, "[T]hey were all in the street. They wouldn't move. They were just mugging us. After that we stopped a little bit and that's when the person show[ed] me the gun. [¶] Then that's when I took off and just heard the gunshots . . . ." F.R. identified defendant as the shooter.
F.R. heard bullets, ducked down, and nearly hit a parked car. When F.R. looked up, he saw "big holes in the front." F.R. also saw that the victim had been shot in the head. The back window had been shot out, and there was blood on the seats. E.G. urged him to keep driving because he feared they were going to continue to be shot at. F.R. drove to a supermarket where they borrowed a cell phone to call the police.
Medical personnel transported the victim to University of California at Davis Medical Center for emergency treatment. Scans showed the victim had a bullet fragment lodged in the rear portion of his skull. The bullet entry caused "numerous skull fragments, and both the bullet and skull fragments damaged the victim's brain." During the time of trial, the victim remained in a nonresponsive state. The parties stipulated the victim suffered great bodily injury.
Law enforcement officers investigated the scene in the area of Bell and Bollenbacher Avenues. There, the officers found five 9-millimeter Luger cartridge cases. Forensic testing showed all five had been fired by the same gun.
On the day of the shooting, F.R. gave a statement to Sacramento Police Department Detective Brian Dedonder. F.R. gave a physical description of the shooter as "a male Hispanic adult about 20 years old, light skinned, light fade haircut, five foot six to 160 pounds, clean shaven but with a light mustache." The next day, F.R. and E.G. met with Detective Dedonder. Detective Dedonder accessed the Facebook page of G.S. and "started pulling up some of the photos that . . . depicted [G.S.] and several other people . . . ." F.R. recognized defendant in the photos as the person who had the gun at the scene of the shooting.
On June 25, 2013, F.R. viewed the surveillance video taken from nearby the scene of the shooting and identified defendant as the shooter.
On June 7, 2013, Detective Dedonder met with C.W. C.W. acknowledged that on the day of the shooting he was hanging out with a group that included the shooter. Detective Dedonder showed C.W. several photos taken from a surveillance video obtained from a Rite-Aid. C.W. pointed out defendant in the photos as the person who had done the shooting. C.W. recounted that a car "there started makin' trouble" and threw a bottle at them. Defendant turned around and shot at the car. Defendant was the only shooter. The interview ended with C.W.'s sister coming into the interview room. She asked C.W., "What happened?" C.W. responded, "[defendant] shot somebody, man. He shot that boy." C.W. confirmed defendant was the shooter in a second interview with the detective on June 28, 2013.
Defendant was arrested on June 24, 2013. Detective Dedonder and another detective interviewed him after giving a Miranda advisement. Defendant stated he had heard "there was a gun shooting." He acknowledged having gone to the Rite-Aid with his friends on the day of the shooting. After visiting the Rite-Aid, defendant and his friend went to the house of his friend, Manny. The mother of his children drove defendant and his friend to Manny's house. Defendant later learned about the shooting while watching television. Defendant denied he was the shooter or even at the scene when the shooting occurred. Defendant also denied being an active member of a gang. However, he did acknowledge he had previously claimed membership with the Norteños.
Miranda v. Arizona (1966) 384 U.S. 436 .
During trial, the parties stipulated that "there is sufficient evidentiary foundation that the Norteño street gang and the Westgate Norteño street gang are street gangs legally under the definition provided by . . . section 186.22 . . . ." The prosecution called Sacramento County Police Detective John Sample to testify as an expert on Hispanic street gangs. Detective Sample testified as follows:
Detective Sample gave his testimony before the California Supreme Court issued its decision in Sanchez, supra, 63 Cal.4th 665.
The Hispanic street gang culture is characterized by four or five "concepts" by which they operate. These are loyalty to the gang, respect through intimidation and fear, reputation that is often built on use and display of weapons, and frequent resort to violence. Hispanic street gangs tend to escalate violence quickly to maintain respect and instill fear.
The Norteños are a criminal street gang with members across California. Detective Sample testified that "there are a large group of them here in Sacramento who I've investigated over the course of my career as a police officer." The detective further testified that "there are roughly 1500 documented Norteños" in Sacramento. Norteños claim the color red and "anything to do with the north, norte. Anything to do with the letter N," and the number 14 because "N" is the fourteenth letter of the alphabet. He opined the Westgate Norteños are a part of the greater Norteño street gang in Sacramento.
Detective Sample reviewed the police reports related to the shooting in this case. Based on that review, the detective concluded defendant is an active member of the Norteño gang. He based this conclusion on "no less than 12 reports" where defendant was "in the continued company of multiple Norteño gang members from various subsets throughout Sacramento." Defendant also has multiple gang-related tattoos and appears in photographs "throwing up gang hand signs, wearing gang clothing with the word Norte on it. He's committed crimes in the past and participated in activities such as gang fights on several occasions."
In response to a hypothetical based on the facts presented in the prosecution's case, Detective Sample stated the shooting "would be committed in association with and I think it would further and assist the gang by allowing them to deal with contingencies that came up during the commission of the crime and after the crime. It would also enhance their gang bonds by committing this crime in association with one another as well as bolstering their confidence with a larger group committing a crime like that." Detective Sample also testified the shooting would be committed with the specific intent to promote, further or assist criminal conduct by the gang.
Defense Evidence
Defendant testified on his own behalf as follows: In May 2013, he was living in Vacaville and would visit Sacramento to see his children. He was in Sacramento on May 24, 2013, when he went to Round Table Pizza with friends - including G.S. and C.W. After eating, they went to Rite-Aid to purchase beer and then to the home of defendant's friend, Manny. They stayed at Manny's house for about an hour before a group of 13 of them walked away on Bell Avenue. Defendant heard gunshots. Defendant could not recall a car passing by or a beer bottle being thrown. When he heard the gunshots, defendant ran away. He called the mother of his children to pick him up. She drove him back to his home in Vacaville.
Defendant denied he was currently in a gang, stating: "I stopped doing it a long time ago." He also specifically denied having a gun or shooting anyone on May 24, 2013.
DISCUSSION
I
Information and Arraignment
Defendant argues the trial court lacked fundamental jurisdiction to try and sentence him because no information was ever filed. In making this argument, defendant relies on a declaration in which the superior court clerk stated she was unable to locate the original information in the superior court file. As part of the argument, defendant asserts he was not arraigned on an information. We reject the argument.
A.
Record
On June 25, 2013, the Sacramento County District Attorney filed a complaint against defendant and four codefendants to charge them with discharging a firearm at an occupied vehicle. The complaint included an allegation that the offense was committed in furtherance of a criminal street gang.
Defendant was arraigned on the complaint on June 26, 2013. He entered a plea of not guilty on July 2, 2013. On July 16, 2013, the district attorney filed a consolidated complaint with two additional codefendants. An amended consolidated complaint was filed on August 14, 2013, to add another two codefendants. An amended complaint was filed on October 18, 2013, to add the allegation that defendant's codefendants acted as accessories after the fact. Three days later, defendant was arraigned on the amended complaint. He entered a plea of not guilty and denied the allegations.
A preliminary hearing on February 21, 2014 culminated with the trial court's holding defendant to answer the charges against him. However, the trial court crossed out the following language on a preprinted form: "In my capacity as Judge of the Superior Court, I deem the within complaint to be an Information and order it filed in the Superior Court." A minute order states the district attorney would file an information on which defendant was to be arraigned. On March 5, 2014, defendant had counsel reappointed for him and he was arraigned on an information. The minute order reflects: "Δ [defendant] arrn on information." The minute order further indicates that, on the day of his arraignment on the information, defendant entered a plea of not guilty and a jury trial was set without a waiver of time by defendant.
A transcript of the proceedings contains the following colloquy:
"THE COURT: You are charged with discharging a firearm at an inhabited dwelling, and you've been retained, sir?
"[Defense counsel]: Yes, your Honor.
"THE COURT: Okay. And also there's use of a gun allegation charged, and gang enhancement allegation with that charge as well. What is the request?
"[Defense counsel]: Enter not guilty pleas and denial enhancements."
The transcript indicates the trial court was reading from the information when it advised defendant of the charge and allegations against him and asked the defense about the plea.
On August 18, 2015, the district attorney filed an amended information charging only defendant with discharging a firearm at an occupied motor vehicle. (§ 246.) The minute order entered that date does not reflect defendant was arraigned on the amended information but only that a date was set for trial. However, the amended information clearly alleged defendant personally discharged a firearm and thereby proximately caused great bodily injury to the victim (§ 12022.53, subds. (b)-(d)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant was tried on the amended information.
After judgment was entered, the superior court clerk filed the following declaration with this court: "I have contacted the attorneys for the defendant and requested the filed information from 3/5/2014. Neither attorney for the defendant has the requested document. I also contact[ed] the District Attorney who is also unable to locate the needed document. I also reviewed all the documents in the file and was unable to find the document."
B.
The Information and Arraignment in this Case
As this court has previously explained, "The offenses with which defendant was charged must be prosecuted by an indictment or information. (§ 682.) 'An information is a written accusation of crime made by a district attorney, without action by a grand jury, after a magistrate, at a preliminary hearing, has found sufficient cause to believe the defendant guilty of a public offense and has ordered him [or her] committed.' " (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1132, quoting Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321.) "Timely filing of the valid information gives the superior court jurisdiction to try an accused. (Rogers v. Superior Court (1955) 46 Cal.2d 3, 7; Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321; People v. Nation (1952) 108 Cal.App.2d 829, 831; Witkin, Cal. Crim. Procedure (1963) § 180, p. 171.) Failure to file an information is an irregularity of sufficient importance to the functioning of the courts that the parties cannot cure the irregularity by their consent to the proceedings." (People v. Smith (1986) 187 Cal.App.3d 1222, 1224-1225.)
Here, the superior court clerk's minute order of March 5, 2014, establishes an information was filed and defendant was arraigned on that information. The clerk's minute order is an official court record of proceedings occurring in court. (Gov. Code, § 68151, subds. (a)(1) & (3); People v. Dubon (2001) 90 Cal.App.4th 944, 954.) Here, the clerk's shorthand notation states defendant was "arr[ainged] on information." Moreover, the clerk's notation that defendant entered a plea of not guilty on March 5, 2014, makes sense only as a response to the filing of an information on that date. Because defendant had already been arraigned on the amended complaint in October 2013, there was no need for another arraignment and entry of a not guilty plea unless a new charging document - here, the original information - had not been filed.
The district attorney's filing of an amended information makes sense only as a successive document to the original information. In short, the record refutes defendant's assertion his arraignment "was a metaphysical impossibility in light of the fact that no information was ever filed."
We reject the suggestion at oral argument that the clerk's declaration regarding the inability to locate the original information lent proof to defendant's assertion there was never an original information. The clerk's inability to locate a document more than two years after its filing does not prove the document never existed. It establishes only that the clerk was unable to find the document two years later.
We also reject defendant's assertion that, "[l]acking an accusatory pleading, the trial court was completely unaware [for] what crime [he] was bound over at the earlier preliminary hearing." At defendant's March 5, 2014, arraignment, the trial court addressed defendant as follows:
"THE COURT: You are charged with discharging a firearm at an inhabited dwelling, and you've been retained, sir?
"[Defense counsel]: Yes, your Honor." (Italics added.)
Defendant reads this slip of the tongue between shooting at an occupied vehicle and an inhabited dwelling as the trial court's wholesale fabrication of an unfiled charge against him. This is an untenable interpretation of the reporter's transcript. Throughout this case, defendant has consistently been charged with discharging a firearm at an occupied vehicle in violation of section 246. Section 246 makes it a crime for any person to willfully discharge a firearm "at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar . . . , or inhabited camper." That a busy trial court might slip and refer to the first type of act criminalized by section 246 does not prove the lack of any information to rely upon. The reporter's transcript indicates the trial court had several pages of arraignments to hear on March 5, 2014. The trial court's reference to an inhabited dwelling does not disprove the clerk's notation that defendant was arraigned on an information on that date. Notably, the trial court correctly referred to the weapon enhancement allegations in addition to referring to the correct Penal Code section. On this record, we perceive no error indicating the lack of an original information or arraignment on that original information.
II
Corroboration Evidence
Defendant contends he received ineffective assistance of counsel because his attorney did not object to the prosecutor's misstatement to the jury regarding the law of corroboration. We are not persuaded.
A.
Closing Argument
During closing argument, the prosecutor emphasized C.W. identified defendant as the shooter. In this regard, the prosecutor stated to the jury: "[Y]ou don't just have to rely on [C.W.] In fact, you can't. The law is going to tell you, and her Honor's going to tell you, that [C.W.] is considered an accomplice in this case because he was there, knows he's a gang member, sounds like he might have even said something; right? He's part of this."
The prosecutor then explored F.R.'s identification of defendant as the shooter. On this point, the prosecutor argued: "And [F.R.] saw him. And that's corroborative evidence that - it's direct evidence of who's holding the gun; right? Who's showing the gun, who's flashing it, and who's sending the message . . . . [¶] Is it such a dramatic leap to then believe [C.W.], who tells you, [defendant] shot that bullet? It isn't. They saw the same thing."
Regarding the need for corroboration, the prosecutor stated:
"The law is going to tell you that, yeah, [C.W.] has to be corroborated, but it can be slight. It can be anything. Anything that connects the defendant to the crime. And you know what? The defendant's own testimony does that. [¶] You'll read that the evidence that connects the defendant to the crime, all right? Anything at all. It can be slight, and it doesn't have to be the elements; it can be something that goes beyond just the fact that some crime was committed.
"Well, the defendant puts himself there at the scene enough. He puts himself there on Bell Avenue.
"The video surveillance corroborates [C.W.] Why? Because [C.W.] says, I was with a guy, including [defendant], and low and behold, seconds before the shooting - sorry - there he is. That's corroboration. That's what you can use to corroborate the testimony of [C.W.]
"And finally, of course, the big piece is [F.R.] [F.R.] can because he sat in here and pointed [defendant] out, said, that's the guy that showed me the gun.
"You have more than sufficient corroboration to believe [C.W.] telling his sister that [defendant] shot [the victim]. More than enough."
After closing arguments, the trial court instructed the jury. The jury instructions included CALCRIM No. 200, by which the trial court informed the jury: "You must follow the law as I explain it to you, even if you disagree with it. If you believe the attorney's comments on the law conflict with my instructions, you must follow my instructions." The trial court also gave CALCRIM No. 335 as follows:
"If the charged crime was committed, then [C.W.] was an accomplice to that crime. [¶] You may not convict the defendant based on the statement or testimony of an accomplice alone. You may use the testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice's testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice's testimony; [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime.
"Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
"Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence."
B.
Effective Assistance of Counsel
Defendant's trial attorney did not object to the prosecutor's discussion of the law regarding corroboration of an accomplice's testimony. Consequently, an argument regarding prosecutorial misconduct has not been preserved for review. "When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal." (People v. Morales (2001) 25 Cal.4th 34, 43-44.) Anticipating this forfeiture, defendant contends he received ineffective assistance of counsel for lack of a timely objection.
A criminal defendant is entitled to effective assistance of legal counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) " 'When a defendant on appeal makes a claim that his [or her] counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. "If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' [citation], the contention must be rejected." ' " (People v. Samayoa (1997) 15 Cal.4th 795, 845, quoting People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) "Accordingly, we presume counsel's decision not to raise the claim was a reasonable, tactical one unless the record affirmatively demonstrates otherwise." (People v. Lucas (1995) 12 Cal.4th 415, 443.)
C.
Corroboration
We conclude defendant did not receive ineffective assistance of counsel for lack of an objection to the prosecutor's discussion of the corroboration required for accomplice testimony. The record indicates defendant's trial attorney had a reasonable tactical basis for not raising such an objection. There were several sources of evidence that corroborated the testimony of C.W. Most notably, defendant's own testimony established C.W. was with defendant right before the shooting occurred. Defendant's testimony also confirmed that C.W. was a friend. F.R.'s testimony showed he had identified defendant on multiple occasions from photos and in person in court. And the surveillance video from Rite-Aid placed defendant in the company of C.W. in the area of the shooting shortly before it occurred.
Had defendant's trial attorney objected, the prosecutor would likely have redoubled his emphasis on the evidence provided by C.W. and F.R. that defendant was the shooter. One of the primary themes of defense counsel's very short closing argument was that the police simply assumed defendant was the shooter and failed to investigate the others he was with at the time of the shooting. This argument would have been undermined if it followed the prosecutor's increased emphasis on how F.R. identified defendant from the start and C.W. never identified anyone else as the shooter. Defendant's trial attorney made a reasonable tactical decision to avoid interjecting an objection that would erode one of his primary arguments to the jury.
Moreover, the jury was properly instructed on how to view testimony by an accomplice. Defendant does not dispute the trial court properly instructed the jury on accomplice testimony by giving CALCRIM No. 335. We presume the jury followed the instructions as given by the trial court. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1422.) Any error in the prosecutor's statements regarding the law of corroboration was cured by the trial court's jury instructions.
To overcome this presumption, defendant argues that "[t]aken to an extreme, the Rite-Aid video connected [defendant] to the crime by demonstrating he was present with the group that was later involved in the shooting." In support of his argument, defendant relies on People v. Centeno (2014) 60 Cal.4th 659 (Centeno). We reject the notion that the prosecutor's statement should be taken "to an extreme." The Centeno court held: "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation] there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' " (Centeno, supra, 60 Cal.4th at p. 667, quoting People v. Frye (1998) 18 Cal.4th 894, 970.)
The multiple sources of corroborative evidence introduced at trial and relied upon by the prosecutor distinguish this case from Centeno where the People used a misleading diagram of the boundaries of California to illustrate the concept of reasonable doubt. (Centeno, supra, 60 Cal.4th at p. 662.) Viewing the closing arguments in context and as a whole, we do not perceive the prosecution urged the jury to ignore the trial court's instructions on the law or that his comments made it reasonably likely insufficient corroborative evidence was relied upon by the jury. The prosecution's statements regarding corroboration of C.W.'s testimony pointed out that defendant's own testimony placed him at or near scene of the crime at Bell Avenue. The prosecutor also pointed out that F.R. confidently identified defendant as the shooter. And the surveillance video from Rite-Aid confirmed C.W.'s description of the events immediately preceding the shooting.
In sum, defendant did not receive ineffective assistance of counsel when his trial attorney did not object to the prosecutor's statements regarding corroboration.
III
Expert Testimony Regarding Defendant's Gang Membership
Defendant contends the trial court violated his Confrontation Clause rights by allowing the prosecution's gang expert to introduce testimonial hearsay. We are not persuaded.
A.
Forfeiture
The Attorney General contends defendant forfeited this issue for lack of objection in the trial court. We disagree.
Detective Sample's testimony as an expert on criminal street gangs preceded the California Supreme Court's decision in Sanchez, supra, 63 Cal.4th 665. Although a timely objection is ordinarily required to preserve an evidentiary issue on appeal, we do not require futile objections to secure appellate review. (People v. Weston (1981) 114 Cal.App.3d 764, 780.) Here, "[a]ny objection would likely have been futile because the trial court was bound to follow pre-Sanchez decisions holding expert 'basis' evidence does not violate the confrontation clause." (People v. Meraz (2018) 30 Cal.App.5th 768, 776, fn. 7.) Consequently, the issue is not forfeited. (Ibid.)
B.
Detective Sample's Testimony
Defendant's argument focuses on the testimony of Detective sample in the following two instances:
In the first instance, Detective Sample opined defendant was an active Norteño gang member on May 24, 2013. The detective testified as follows:
"Q [by the prosecution] . . . In your opinion on May 24th of the year 2013, was [defendant] an active Norteño gang member?
"A [by Detective Sample] Yes, he was.
"Q And, generally speaking, what are you basing that opinion on?
"A I've reviewed no less than 12 reports where [defendant] has been in the continued company of multiple Norteño gang members from various subsets throughout Sacramento. He's admitted on multiple occasions to multiple officers to being a Norteño gang member. [Defendant] has multiple gang-related tattoos. He's been in various photographs throwing up gang hand signs, wearing gang clothing with the word Norte on it. He's committed crimes in the past and participated in activities such as gang fights on several occasions."
In the second instance, Detective Sample opined Manuel Parra and Clarence Smith, who were in defendant's company around the time of the shooting, were then active Norteño gang members. The detective testified:
"Q [by the prosecutor] [A]re you familiar with [Manuel] Parra?
"A [by Detective Sample] Yes.
"Q How?
"A Through police reports. Um, I've actually sat on his house - he lives really close off of Jessie - um, on several different occasions. He's a Westgate Norteño. Hangs out with a lot of the Westgate Norteños I'm familiar with.
"Q What about [Clarence] Smith?
"A I have not met him other than this investigation. It's the first time I've actually seen [Smith]. I've spoken to people about him. He goes by Tre. I spoke to some people and stuff like that, but I never had personal contact with him."
C.
Expert Testimony Regarding the Basis of the Expert's Opinion
In Sanchez, the California Supreme Court considered the extent to which the Confrontation Clause of the Sixth Amendment bars an expert witness from introducing case-specific hearsay for which the defendant has no opportunity to cross-examine the persons who originally made the statements. (63 Cal.4th at pp. 670-671.) As the Sanchez court noted, "The confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' " (Id. at p. 674, quoting Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 (Crawford).) Nonetheless, "an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge." Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. (Id. at p. 676.)
The Sanchez court set forth a two-step test to determine the admissibility of statements regarding an expert witness's statements regarding the basis of the expert's opinion. "[A] court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term" in Crawford, supra, 541 U.S. 36. (Sanchez, supra, 63 Cal.4th at p. 680.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.)
The Sanchez court's holding "does not call into question the propriety of an expert's testimony concerning background information regarding his [or her] knowledge and expertise and premises generally accepted in his [or her] field. Indeed, an expert's background knowledge and experience is what distinguishes him [or her] from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, [Sanchez] does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of [their] expertise. [The Supreme Court's] conclusion restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685.)
Here, we conclude Detective Sample's testimony did not violate defendant's Sixth Amendment rights. Although Detective Sample explained his opinion was based on 12 reports about defendant's past association with Norteño gang members, the detective did not testify about the contents of those reports. The other bases for Detective Sample's opinion were subject to the jury's own evaluation. Regarding defendant's past admissions of gang membership, defendant actually testified in this case and denied his current association. In other words, the declarant was the defendant himself and, here, the defendant actually testified. The jury also saw the photos of defendant with other gang members while wearing gang-related clothing. In short, Detective Sample's description of the bases for his opinion did not violate defendant's Confrontation Clause rights.
Detective Sample's testimony regarding Parra and Smith's gang memberships also did not violate the California Supreme Court's holding in Sanchez. Although Detective Sample noted he learned about Parra "through police reports," he did not relate anything about the contents of those reports. Moreover, Detective Sample noted the other ground for his opinion was his personal experience with Parra. Detective Sample's personal experience with Parra does not constitute hearsay. (Sanchez, supra, 63 Cal.4th at p. 674.)
Moreover, the portion of Detective Sample's testimony to which defendant now objects and relating to Smith was not case specific hearsay. The detective noted, "I spoke to some people and stuff like that, but I never had personal contact with him." The contents of those conversations was not admitted for the truth of their assertions. This answer did not violate the holding in Sanchez.
Although the prosecution introduced Detective Sample's testimony without the benefit of the guidance in Sanchez, supra, 63 Cal.4th 665, we conclude defendant's Confrontation Clause rights were not violated.
IV
Identification Evidence
Defendant argues he received ineffective assistance of counsel because his trial attorney (1) did not object to the admission of two photographs of defendant that had "shooter" written on them, (2) did not rely on the preliminary hearing transcript to impeach F.R.'s identifications of defendant as the shooter, and (3) did not use an expert witness on eyewitness identification to undermine F.R.'s identification of defendant as the shooter. We reject the arguments.
A.
The "Shooter" Photograph
Recognizing his trial attorney did not make a timely objection to the admission of the photos that were shown to E.G., defendant argues the lack of objection constituted ineffective assistance of counsel. We conclude any error by defendant's trial attorney was nonprejudicial.
The United States Supreme Court has held that "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) So too, the California Supreme Court has held that "[i]f a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, the lack of an objection to the photos bearing the hand-written notation "shooter" was harmless. The two photos at issue were shown by Detective Dedonder to E.G. during an interview after the shooting and before trial. Detective Dedonder asked E.G. about the identity of the shooter and E.G. steadfastly maintained he did not see anyone display a gun on the date of the shooting. When reminded he had earlier identified defendant in the photographs as the shooter, E.G. said his identification had been solely based on what the victim's girlfriend had said.
The prosecution called E.G. as a witness at trial. At trial, E.G. changed his story a third time. He stated that he saw "a person" lift his shirt to display a gun. When shown the photos with the hand-written notation "shooter," E.G. acknowledged he had previously seen the photos but did not know who had written on them. On cross-examination, E.G. professed to be unable to remember previously identifying defendant as the shooter. Defense counsel effectively cross-examined E.G. about his varying statements regarding whether he saw who fired the shots. At trial, E.G. did not identify defendant as the shooter or affirm that he had ever identified defendant as the shooter.
During closing arguments, the prosecution did not rely upon E.G.'s pretrial identification of defendant at all in arguing defendant was the shooter. Defense counsel's closing argument challenged the credibility of the identifications by F.R. and C.W., but also ignored the pretrial identification by E.G. The fact both the prosecution and defense omitted any mention of E.G.'s pretrial identifications showed it had essentially no evidentiary value. Because the photos bearing the notation "shooter" were introduced only in connection with the pretrial interview of E.G., these photos also held minimal evidentiary value. Unsurprisingly, these photos were ignored by both parties during closing arguments as well. Any deficiency in the lack of objection by defendant's trial attorney to the admission of the photos was harmless, especially in light of the emphasis placed by both parties on the identifications by F.R. and C.W.
B.
Failure to Impeach F.R. with His Preliminary Hearing Testimony
Defendant argues he received ineffective assistance of counsel because his trial attorney did not use the transcript of the preliminary hearing to impeach F.R. during his cross-examination. We reject the argument.
Defendant's trial attorney did cross-examine F.R. about his identification of defendant as the shooter. Defense counsel began by asking about the description of the shooter initially provided to the police by F.R.:
"Q [by defense counsel] And the description you gave [to the police] of the shooter first, very first time, was that 20 years old, light skinned, light fade, clean shaven, white big tee shirt. You didn't remember his shoes. And you said I didn't see any tattoos or piercings. That's what you told the first detective you talked to.
"A [by F.R.] I don't remember saying that."
Defense counsel moved on to cross-examine F.R. at length about the victim's girlfriend's identification of defendant as the shooter. Defendant's trial attorney then explored E.G.'s statements to F.R. that defendant was the shooter. Defense counsel also elicited F.R.'s acknowledgement he had initially told the detective that "the faces were too fuzzy" in the surveillance video to make an identification.
In reviewing defendant's claim of ineffective assistance of counsel in cross-examining F.R., we note that, "as to whether certain witnesses should have been more rigorously cross-examined, such matters are normally left to counsel's discretion and rarely implicate inadequacy of representation." (People v. Williams (1997) 16 Cal.4th 153, 217, quoting People v. Cox (1991) 53 Cal.3d 618, 662.)
Defendant argues that during cross-examination, his trial attorney should have relied on the preliminary hearing transcript "where it was shown F.R. originally told police the person with the gun was wearing a red hat that night, and F.R. initially identified two other people from the RiteAid video as potentially being the person armed with a gun that night." (Italics added.)
As F.R.'s response during cross-examination showed, he did not recall his original statement to the police regarding his description of the shooter. Defense counsel could have made a reasonable tactical decision to avoid dwelling on the original identification when F.R. could not remember the original identification. Instead, defense counsel reasonably decided to move on to cast doubt on F.R.'s identification as the product of influence by the victim's girlfriend and E.G. The prosecutor's closing argument shows the reasonableness of this strategy by defendant's trial attorney because the prosecutor emphasized the identifications of C.W. and the in-court testimony of F.R. The original identification by F.R. to the police did not receive attention during the prosecution's closing argument. In short, defendant has not established trial counsel was deficient in his cross-examination of F.R.
C.
Failure to Call an Expert Witness on Identification
Defendant argues his trial attorney was ineffective because he "failed to employ an expert to provide crucial expert witness evidence addressing" the identification evidence - especially in connection with the Facebook photos depicting defendant. We reject the argument because the record on direct appeal does not support the claim. Specifically, the appellate record does not show whether defense counsel consulted with an expert on identification or not. The record also does not indicate whether an expert would have provided the kind of testimony defendant imagines might have been possible and favorable.
A claim of ineffective assistance of counsel on this ground is more appropriately presented in a petition for a writ of habeas corpus. (People v. Adkins (2002) 103 Cal.App.4th 942, 950-951 [rejecting claim of ineffective assistance of counsel for failure to hire independent expert where the record did not show whether an expert was consulted or what evidence an expert would have provided].) " ' "[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected." ' " (Ibid., quoting People v. Wilson (1992) 3 Cal.4th 926, 936.)
V
Failure to Instruct on Grossly Negligent Discharge of Firearm
Defendant argues the trial court committed reversible error by not instructing the jury on grossly negligent discharge of a firearm (§ 246.3) as a lesser included offense to shooting at an occupied vehicle (§ 246). We disagree.
A.
Jury Instructions Given
During trial and outside the presence of the jury, the trial court brought up the jury instruction on grossly negligent discharge of a firearm. Defendant's trial attorney twice stated to the trial court that he objected to a jury instruction on the lesser included offense "for tactical and other reasons." The trial court subsequently instructed the jury on discharge of a firearm at an occupied vehicle (§ 246), but not on grossly negligent discharge of a firearm (§ 246.3).
B.
Instruction on Lesser Included Offenses
As the California Supreme Court has held, "The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) . . . [¶] Nevertheless, 'the existence of "any evidence, no matter how weak," will not justify instructions on a lesser included offense.' (Breverman, supra, 19 Cal.4th 142, 162.) Such instructions are required only where there is 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he [or she] is not guilty of the greater offense. (Ibid.; accord, People v. Manriquez (2005) 37 Cal.4th 547, 584.)" (People v. DePriest (2007) 42 Cal.4th 1, 50.) "[T]he 'substantial' evidence required to trigger the duty to instruct on such lesser offenses is not merely 'any evidence . . . no matter how weak' (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12), but rather ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed. (Id. at p. 684 . . . .)" (People v. Cruz (2008) 44 Cal.4th 636, 664, last ellipses added.) "We review de novo a trial court's failure to instruct on a lesser included offense (People v. Waidla (2000) 22 Cal.4th 690, 733), and in doing so we view the evidence in the light most favorable to the defendant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.)" (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Grossly negligent discharge of a firearm in violation of section 246.3, subdivision (a), is a necessarily included lesser offense of discharging a firearm at an occupied vehicle in violation of section 246. (People v. Ramirez (2009) 45 Cal.4th 980, 990 (Ramirez).) Discharging a firearm at an occupied vehicle requires proof that a defendant maliciously and willfully discharged a firearm at an occupied vehicle. (§ 246; People v. Manzo (2012) 53 Cal.4th 880, 884-885 (Manzo).) For purposes of section 246, a defendant discharges a firearm at an occupied vehicle when "shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it." (People v. Overman (2005) 126 Cal.App.4th 1344, 1356 (Overman).) The discharge of the firearm must occur "within the defendant's firing range." (Ramirez, supra, at p. 990.)
Grossly negligent discharge of a firearm requires proof that a defendant unlawfully discharged a gun, did so intentionally, and " 'did so in a grossly negligent manner which could result in the injury or death of a person.' " (Ramirez, supra, at p. 986, italics added; § 246.3, subd. (a).) Thus, the trial court was required to instruct defendant's jury on the lesser included offense of negligent discharge of a firearm only if there was substantial evidence upon which a reasonable jury could conclude defendant did not discharge his weapon "in close proximity" to the occupied vehicle "under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it." (Overman, supra, 126 Cal.App.4th at p. 1356.) Here, there was no such substantial evidence.
When defendant fired his shots, the occupied car was in very close proximity. F.R. had slowed down and pulled to the side of the street so he would not hit the group of people who refused to get out of the road. The occupied vehicle "passed through a group of people," including defendant. F.R. was close enough to see defendant lift his shirt to display his gun. Almost immediately after displaying the gun, defendant began shooting. C.W. testified that he did not see anyone else with a gun. No rational jury could find defendant was not in close proximity to the vehicle when he fired at it with a conscious disregard for the probability he would hit the vehicle. Multiple shots actually hit the vehicle and put "big holes" into it in addition to hitting the victim in the head.
Defendant argues that,"[b]ased on the trial evidence that there were five shots fired in the space of a very short period of time, and E.G.'s initial statement to the police and his later trial testimony that he believed two guns were fired, there was evidence from which the jury could have concluded [he] fired a shot but was not guilty of anything greater than grossly negligent discharge." We reject the argument. The speed by which the shots were fired do not provide any basis for differentiating between the offenses in sections 246.3, subdivision (a), and 246. And defendant cites no authority standing for such a proposition.
E.G. did express wonderment about the speed at which the shots were fired, stating he thought it might have been two shooters. However, E.G. did not see two shooters or two guns. And the shell casings recovered from the scene established they were all fired from the same gun. C.W. affirmatively stated he did not see anyone other than defendant with a gun. The possibility there might have been a second shooter unseen by anyone, who fired only at the exact same time as defendant, and who did not expend any shell casings constitutes speculation, not substantial evidence.
The trial court did not err by not instructing on grossly negligent discharge of a firearm.
Our conclusion obviates the need to consider (1) whether defendant's trial attorney invited any instructional error by making a tactical decision to object to any instruction on grossly negligent discharge of a firearm, and (2) whether such a tactical decision might have constituted ineffective assistance of counsel.
VI
Cumulative Prejudice
Defendant argues that claimed errors during trial were in the aggregate prejudicial so that reversal of the judgment is required. "Under the 'cumulative error' doctrine, we reverse the judgment if there is a 'reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors. . . . 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216-1217, quoting People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Here, defendant has not established any trial court error or deficient performance by his trial attorney. Accordingly, we discern no prejudicial error.
VII
Section 12022.53
Defendant's final argument is that his case must be remanded because recent amendment of section 12022.53, which became effective after he was sentenced, gives the trial court discretion to strike firearm enhancements in the interest of justice. We disagree.
A.
Sentencing
Applying the law at the time, the trial court informed defendant: "[Y]ou are not eligible for probation pursuant to . . . section 12022.53(g). State prison in your case is mandatory." Thus, the trial court imposed a sentence enhancement of 25 years to life under section 12022.53, subdivision (d), for personally and intentionally discharging a firearm and proximately causing great bodily injury to a person other than an accomplice.
In pronouncing sentence, the trial court indicated it thought the appropriate length of sentence was 40 years to life: "There is a court decision that has inured to your favor . . . . I was fully intending to sentence you to 40 years to life, but the Supreme Court indicated that under the Jones decision that would not be appropriate, and they have indicated as to why they think that is what the [L]egislature intended. They are the Supreme Court, and I am governed by their case law. [¶] So you will serve 32 years to life with the minimum parole eligibility calculated as the upper term of seven years for the underlying Section 1170 conviction, plus 25 years to life as to violating 12022.53(d) as an enhancement. [¶] I am imposing the upper term because you have engaged in violent conduct. I find you are a serious danger to our society." (Italics added.)
People v. Jones (2009) 47 Cal.4th 566 (Jones).
B.
Amendment of Section 12022 .53
An amendment to section 12022.53 took effect on January 1, 2018, and now confers on trial courts discretion, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h); Sen. Bill No. 620 (2017-2018 Reg. Sess.) as amended by Stats. 2017 ch. 682, § 2.) This court has previously held that the amendment is retroactive. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) Thus, defendant is presumptively eligible for remand and resentencing under the recent amendment of section 12022.53. (Woods at p. 1090.)
However, remand is not appropriate in cases where the record shows the trial court would not have stricken the enhancements had it the discretion to do so at sentencing. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The Gutierrez court declined to remand a case for resentencing after the California Supreme Court decided the trial courts have discretion to strike a prior serious felony conviction in the interest of justice. (Id. at p. 1896, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The Gutierrez court noted the general rule that "[r]econsideration of sentencing is required under Romero where the trial court believed it did not have discretion to strike a Three Strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Ibid.) In Gutierrez, "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence. It stated that imposing the maximum sentence was appropriate." (Ibid.) Consequently, remand was not required.
Here, the trial court stated it intended to sentence defendant to serve a term of 40 years to life in state prison - but was prevented from doing so based on recent case law unrelated to section 12022.53. There is no reasonable probability the trial court would strike defendant's sentence enhancement from a sentence the trial court stated was already shorter than appropriate.
VIII
Sentencing Error under Section 186 , Subdivision (b)(4)(A)
In the respondent's brief, the Attorney General contends defendant received an unauthorized sentence. Specifically, the Attorney General argues the California Supreme Court's decision in Jones, supra, 47 Cal.4th 556, requires a sentence of 40 years to life in state prison for defendant's conviction with a minimum term calculated under section 186, subdivision (b)(4)(A). The contention is meritorious.
A.
Sentencing and Appeal
The trial court imposed a sentence of 32 years to life for discharging a firearm at a vehicle with the minimum term calculated under 186.22, subdivision (b)(4)(A). As recounted in part VII A., the trial court indicated it believed a sentence of 40 years to life was appropriate, but prohibited by the holding of Jones, supra, 47 Cal.4th 566. Thus, the trial court sentenced defendant to serve a base term of 7 years for discharging a firearm at an occupied vehicle (§ 246) plus an indeterminate term of 25 years to life for the firearm enhancement imposed by section 12022.53, subdivision (d).
Although the prosecution did not object to the sentence in the trial court, the issue is cognizable on appeal nonetheless. The trial court was required to sentence defendant consistent with the law. (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.) The imposition of a sentence unauthorized by law may be corrected on appeal even without prior objection. (Ibid.) Consequently, we consider the Attorney General's contention that the holding in Jones requires a sentence of 40 years to life in this case.
B.
People v. Jones
In Jones, the California Supreme Court construed section 186.22, subdivision (b)(4). (47 Cal.4th at p. 572.) In pertinent part, subdivision (b)(4) of section 186.22 provides: "Any person who is convicted of a felony enumerated in this paragraph 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, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph."
Jones involved a defendant who was convicted of shooting at an inhabited dwelling (§ 246), a crime that was punishable by a life term because the defendant was also found to have committed the crime to benefit a criminal street gang (§ 186.22, subd. (b)(4)). (47 Cal.4th at pp. 571-572.) The Jones court noted, "By itself, that felony carries a maximum sentence of seven years in prison. But when, as here, the crime is committed to benefit a criminal street gang, the punishment is life imprisonment, with a minimum parole eligibility of 15 years. (§ 186.22(b)(4).) And when, as here, a defendant personally and intentionally discharges a firearm in the commission of '[a]ny felony punishable by . . . imprisonment in the state prison for life' (§ 12022.53, subd. (a)(17)), section 12022.53(c) requires imposition of an additional 20-year prison term." (Id. at p. 572, italics added.)
Jones thus holds that a term imposed pursuant to section 186.22, subdivision (b)(4), constitutes a penalty imposed for the underlying felony, the imposition of an additional term for a proven enhancement under section 12022.53. (Jones, supra, 47 Cal.4th 566.) Here, defendant is subject to an additional 25 years to life under section 12022.53, subdivision (d), because a person who "personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." Thus, defendant's sentence must be corrected to a term of 15 years to life for the discharge of a firearm at an occupied vehicle committed for the benefit of a criminal street gang plus an additional 25 years for the enhancement under section 12022.53, subdivision (d). (Jones, supra, 47 Cal.4th at p. 572.)
DISPOSITION
Defendant's convictions are affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect that defendant's term is 15 years to life in state prison for the discharge of a firearm at an occupied vehicle (Pen. Code, § 246), committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(4)), with an additional 25 years for the enhancement under Penal Code section 12022.53, subdivision (d), and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
DUARTE, J.