Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA279286, Sam Ohta, Judge.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Myoshi and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Following a jury trial, defendant Angel Gomez was convicted of three counts of attempted willful, deliberate, and premeditated murder (counts 1, 2, and 3) and three counts of shooting from a motor vehicle (counts 4, 5, and 6). (Pen. Code, §§ 664/187, subd. (a), 189, 12034, subd. (c).) In the commission of each crime, defendant was found to have personally used and discharged a firearm causing great bodily injury and to have committed the offenses with the specific intent to benefit a criminal street gang. (§§ 12022.53, subds. (b), (c), and (d), 186.22, subds. (b)(1) and (5).) He appeals, contending that (1) there is insufficient evidence to support the jury verdict, (2) the court abused its discretion by imposing consecutive sentences for the three attempted murder counts, (3) his sentence constitutes cruel or unusual punishment, (4) trial counsel rendered ineffective assistance at sentencing, and (5) the enhancements imposed pursuant to section 12022.53, subdivisions (b) and (c) on counts 4, 5, and 6 must be stricken. We modify the judgment and affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 23, 2005, between 9:00 and 9:30 p.m., Franky Dominguez was standing near the intersection of Avenue 41 and Figueroa with Deyvi Covarrubia and Edith Barajas, Dominguez’s former girlfriend. A van approached, and someone inside asked, “Where are you from?” The van stopped at the curb across the street, and Dominguez was able to see the driver’s side of the vehicle. Dominguez tried not to pay attention to the van because he understood that he was being asked if he belonged to a gang, and he did not. He continued to speak to Barajas.
Dominguez was able to see a figure of an individual in the van but it was too dark for him to identify that person. He did not see anyone get out of the van. After two or three minutes, he heard gunshots. He threw Barajas to the ground and tried to shield her with his body. Dominguez saw Covarrubia running away. Dominguez and Barajas remained on the ground until the shooting stopped. They got up and ran to Dominguez’s apartment building. Once there, he saw police and an ambulance. He saw Covarrubia, but neither he nor Barajas was able to speak to him. Dominguez’s memory of the incident was “messed up” due to the trauma it caused.
Covarrubia testified that he was standing near the bus stop with Dominguez and Barajas. A van approached, and a male inside the van asked something, but Covarrubia could not remember what he said. Covarrubia acknowledged that he reported to the police shortly after the incident that the male asked, “Where are you from?” Covarrubia told police that he answered, “Nowhere.” He knew that he was being asked if he belonged to a gang, and he did not. At trial, he did not recall if anyone in the van said anything else. He denied telling police that the male responded, “This is Highland Park. Fuck Avenues, Fuck Noodles, Fuck Cypress Park.” Although at trial Covarrubia could not remember the color of the van, he told police and testified at the preliminary hearing that the van was light-colored. (The preliminary hearing was held almost one year prior to the trial.)
Covarrubia thought that he saw a driver and the shadow of someone else in either the passenger seat or the back of the van, although he said he could have mistaken the driver’s shadow for another person. He saw the driver extend his right hand out of the window and fire five or six shots. Covarrubia ran, and was shot in the right arm and left buttock. As he ran toward his apartment, he felt pain in his testicles and realized that he was bleeding. Once home, one of his parents called 911. He was taken to County USC hospital, where he remained for three days and underwent surgery to remove a bullet from his penis.
Covarrubia told the jury that Detective Rivera showed him a group of six photographs. Covarrubia denied telling the detective that he thought one of the photographs looked like the person who shot him. The prosecutor showed Covarrubia a copy of the photographic lineup that Covarrubia had seen previously and a corresponding document that was dated March 1, 2005. Covarrubia admitted that he wrote on the document: “Picture No. 3 looks like the one that shot me, but I’m not sure.” He was asked to look at defendant in the courtroom. Covarrubia testified that defendant did not appear to be the person who was depicted in picture number three.
Although Covarrubia had not moved from the area of the shooting, he denied that he was afraid to testify at either the preliminary hearing or trial. However, he admitted he told the detective that he was scared to testify at the preliminary hearing because of possible gang retaliation.
Barajas testified that she was waiting at the bus stop with Dominguez and Covarrubia. A light brown car approached and there was a conversation but she could not remember what was said. She admitted that she testified at the preliminary hearing that the vehicle she saw was a gray or brown van, the occupants of the van asked if they were from a gang, and her companions answered, “No.” At trial, she said after her friends said they were not in a gang, she heard a “couple of shots.”
Although Barajas could not recall the specific testimony she gave at the preliminary hearing, she remembered that she identified defendant as the shooter. At that hearing, Barajas stated that she looked at defendant’s face during the entire incident and was sure that he was the shooter. She said that she made her observations from a distance of approximately 16 feet. Barajas also reported that she heard seven or eight shots. Barajas told the jury that she testified truthfully at the preliminary hearing. However, at trial, she was unable to identify defendant, and estimated that the van was about 36 feet away at the time of the shooting.
Barajas recalled that detectives showed her two sets of photographs that each contained six photos. She did not remember when this occurred but she recognized her handwriting on a lineup form that was dated March 7, 2005. On that day, she circled photograph number 3 in one of the six-packs, and wrote “It looks like him but not sure.” At trial, she said that the photo she had selected looked like a picture of defendant but she could not say for sure. She denied being scared of gang retaliation motivated by her testimony.
On cross-examination, Barajas said that she did not wear glasses although she had needed them “for quite sometime already.” She said that she could not have seen the driver of the van because she did not have glasses and it was too dark. She claimed that she identified defendant at the preliminary hearing even though she was not sure he was the shooter because she was angry she “got shot at for no reason.”
Los Angeles Police Officer Richard Gadsby was notified that a shooting had taken place at Avenue 41 and Figueroa. He responded to County USC hospital and contacted Covarrubia in the emergency room. Although Covarrubia had been shot, he was coherent. He told Gadsby that a grey van was involved. Covarrubia said someone asked him where he was from, and he responded, “We’re from nowhere; we don’t gang bang.” The person replied, “This is Highland Park. Fuck Avenues, Fuck the Noodles, Fuck Cypress Park.” When Gadsby interviewed Franky Dominguez, Dominguez’s recollection as to the content of the conversation between the male in the van and Covarrubia was the same as Covarrubia’s.
Gadsby had been patrolling the Northeast Division where the shooting took place for approximately nine years, and was familiar with the gangs in the neighborhood. The Avenues is a predominantly Hispanic gang in the area where the shooting occurred. Cypress Park is another gang whose territory is nearby. “Noodles” is a derogatory term for the Avenues gang, used mainly by its enemies, Cypress Park and Highland Park. Gadsby testified that the Highland Park gang has been at war with the Avenues gang since the 1970’s and Cypress Park’s primary enemy is the Avenues gang. Based on the response Covarrubia and Dominguez heard to Covarrubia’s claim that they did not belong to a gang, Gadsby believed the shooting was gang related.
On February 23, 2005, at approximately 9:30 p.m., Los Angeles Police Officer Carlos Langarica was on patrol when he saw a gray Ford Aerostar van on Lafayette Street. He had heard a report that a similar vehicle had been involved in a crime earlier that night. Langarica told dispatch he was following a possible “187” (murder) suspect. Defendant was driving the van, which was traveling with a flat tire, and there was a passenger in the right front seat. As Langarica drove directly behind the van, he noticed that a pickup truck was traveling in the opposite direction. The street was very narrow, and the driver of the truck appeared to pull to the side to allow the van to pass. Defendant stopped the van and yelled out the window, “Where are you from?” in the direction of the truck’s driver. At that point, the van’s passenger looked over his shoulder at Langarica’s vehicle and immediately ducked down and appeared to hide something. The passenger raised his head and continued to look back toward Langarica. Defendant turned his head in Langarica’s direction, appeared startled, and continued to drive down the street. Langarica activated the vehicle’s red light and siren, and defendant pulled the van over.
Officer Steven Aguilar searched the van and found a semi-automatic .25 caliber Beretta on the passenger side floorboard in plain view, a chrome .22 caliber revolver under the passenger seat, and a glove near the guns. (Another officer testified that the revolver was fully loaded and the Beretta had one round in the chamber and seven rounds in the magazine.) Rivera also discovered a box of .25 caliber ammunition. The box had the words “Highland Park Tagging” and the letters “BSK” written on it. Aguilar told the jury that a semi-automatic handgun expends shell casings, but a revolver does not.
Detective Gerardo Loza responded to the scene of the shooting at Avenue 41 and Figueroa. He recovered six shell casings that were either .22 or .25 caliber. He recognized a Los Angeles Police Department evidence envelope that corresponded to the Avenue 41 shooting. Inside were six .25 caliber shell casings. Loza gave the casings he found to Officer Gadsby, who booked them into evidence. The casings were the same color and caliber as the bullets from the box of ammunition Officer Aguilar found in the van.
Stella Chu is a criminalist for the Los Angeles Police Department assigned to the firearms analysis unit. She test fired the .25 caliber Beretta found in the van. She concluded that the six shell casings found at the scene of the shooting were fired from the Beretta. She testified that a .25 caliber round is too large to fit into a .22 caliber revolver.
Amy Adams is a forensic print specialist for the Los Angeles Police Department. She examined the items found in the van (in addition to the guns, glove, and ammunition box, Officer Aguilar found a napkin and a crumpled piece of newspaper) and the bullets taken from the guns and was unable to develop any useable fingerprints. She stated that there are a number of reasons why fingerprints are not found on objects, including the wearing of gloves, sweaty hands, the surface of the object, and the environment in which the object is located. She has been able to find a useable fingerprint on a handgun approximately 10 percent of the time and on ammunition about 1 percent of the time.
Los Angeles Police Detective Jose Carrillo is one of the investigating officers on the case. On at least three or four occasions, Covarrubia told him that he feared for his safety. When he finished testifying in the trial, Covarrubia saw Carrillo in the hallway. Franky Dominguez approached Carrillo and said that he feared for everyone’s safety, particularly Covarrubia’s, who still lived in the same community where the shooting occurred. Carrillo said that Covarrubia echoed Dominguez’s concerns. Carrillo testified that on June 27, 2006 (approximately two weeks prior to the trial), he attempted to serve Barajas with a subpoena, and she refused to sign it. (The jury heard that a body attachment was issued and held for Barajas when she failed to appear in court on July 11, 12, and 13.)
Detective Louis Rivera testified that the distance between the location of the shooting and the area where defendant’s van was stopped is approximately three miles. He said defendant has two tattoos, one behind his left ear with the letters “HLP” and another behind his right ear with the letters “BSK.”
On the night of February 23, 2005, when Rivera arrived at the location where defendant’s van was stopped, he saw the passenger, Richard Powell, being taken out of the van. Rivera conducted a patdown search of Powell and found a live .22 caliber round in Powell’s left front pants pocket.
On the morning of March 3, 2005, Rivera and other officers served a search warrant at the apartment where defendant lived with his mother. Rivera recovered two street signs from defendant’s bedroom. One had gang graffiti and the word “Away” on it. “Away” is Richard Powell’s gang moniker. The other sign had graffiti and the word “Away” and the name “Angel.”
Officer Robert Morales had been assigned to the Northeast Gang Enforcement Detail for the past five years. He was familiar with the Avenues, Highland Park, and Cypress Park gangs; all primarily Hispanic gangs. Morales testified to the primary criminal activities of the Highland Park gang, as well as two prior crimes of which Highland Park gang members had been convicted. One of the symbols of the gang is “HLP.” “BSK” is a clique within the Highland Park gang. The area of the shooting, Avenue 41 and Figueroa, is outside of Highland Park territory and is claimed by its rival, a clique of the Avenues.
Morales viewed a photograph of defendant’s “HLP” and “BSK” tattoo. He stated that anyone with such tattoos is a member of the Highland Park gang because the gang would not allow a nonmember to wear them. A member with a tattoo has proven his or her loyalty to the gang and has “put in some sort of work” for the gang. Based on the tattoos and admissions that defendant had given to other officers concerning his gang membership, Morales believed defendant was a Highland Park gang member.
He testified that in gang culture “‘Respect’ means everything to a gang — to a gang member.” Crimes committed on behalf of the gang earn the gang respect, and the individual member who commits the crime earns respect as well. A gang commands even greater respect when it commits crimes in another gang’s territory.
Morales opined that the shooting was committed in association with a criminal street gang with the specific intent to promote the gang. By asking the victims where they were from, defendant was challenging them. By announcing the name of his gang, defendant was making certain the victims knew who was committing the crimes. This furthers the reputation of the gang for violence, and serves to intimidate other gangs and members of the community. A gang’s reputation for violence sends the message to the community that there are consequences to cooperating with police who are attempting to resolve gang crimes.
On July 25, 2006, the jury convicted defendant of all counts and found the special allegations true. On October 24, the court imposed consecutive sentences for the three counts of attempted murder and the section 12022.53, subdivision (d) enhancements. Sentences for the three counts of shooting from a motor vehicle were imposed and stayed pursuant to section 654. Defendant was sentenced to 120 years to life.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends that there is insufficient evidence to support the jury verdict. He alleges that he was denied due process under the Fourteenth Amendment of the United States Constitution, citing Jackson v. Virginia (1979) 443 U.S. 307.
To determine whether there is sufficient evidence to sustain a conviction, the court “‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ‘“isolated bits of evidence.”’ [Citation.]” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
Defendant attacks virtually every finding of the jury. In doing so, he emphasizes the portions of the evidence helpful to him and ignores the testimony that incriminates him. It is the jury, not this court, that resolves conflicts in the evidence, and where its resolution of the factual issues is supported by substantial evidence, we must affirm. (People v. Yeoman (2003) 31 Cal.4th 93, 128.) For the reasons that follow, we reject defendant’s attempt to retry the matter and conclude that there is ample evidence to support his conviction.
He argues that there is insufficient evidence to establish his identity as the shooter. He points out that the people who selected his photograph from the six-pack were not certain of their identifications, and the only witness who identified him at the preliminary hearing, Barajas, was unable to recognize him as the shooter at trial. Moreover, he asserts, Barajas’s identification at the preliminary hearing “was unworthy of belief, because it was physically impossible or inherently improbable.” Defendant also argues that there is a dearth of physical evidence tying him to the crime. Although he admits that “certain” shell casings were shown to have been fired from the Beretta found in the van, he contends there is no evidence that those shell casings were found at the crime scene or connected to the shooting in this case.
An examination of all of the evidence belies defendant’s claim of insufficiency. Covarrubia and Barajas selected defendant’s photograph after viewing the six-pack. Barajas identified defendant in court at the preliminary hearing, stating that she was sure he was the shooter. Although both claimed they did not recognize defendant at trial, the jurors could reasonably conclude that they were intimidated in light of the evidence that on several occasions Covarrrubia expressed concern for his safety to Detective Carrillo and Barajas still lived and worked in the area of the shooting (although she initially denied that fact). In addition, Barajas refused to sign for her subpoena and failed to appear in court on three occasions just prior to trial, making it necessary for the court to issue and hold a warrant for her arrest. Defendant’s assertion that there is no evidence that he was depicted in the photograph chosen by the witnesses ignores the fact that the six-pack was admitted into evidence. The jury had the opportunity to determine that fact on its own.
Contrary to defendant’s claim, ample evidence established that the shell casings in evidence were from the crime scene. Detective Loza, who recovered the casings, recognized the evidence envelope in court as one that corresponded to the shooting. He testified that there were no other casings at the crime scene, thus leading to the logical conclusion that the shell casings he found were extracted from the weapon that was fired in the instant case. We also note that no objection relating to the chain of custody of the shell casings was lodged at trial.
The firearms expert stated that the Baretta found in the van fired the casings found at the scene. The passenger in defendant’s van, Richard Powell, had a live .22 caliber round in his pants pocket when he was arrested, which corresponded to the other weapon Officer Aguilar found in the van. This suggested that defendant possessed the Beretta, the weapon connected to the shooting.
In addition to the physical evidence, the circumstances of defendant’s arrest provided additional evidence that he was the shooter. The shooter asked the victims, “Where are you from?” just prior to firing his weapon. When Officer Langarica was driving behind defendant, he saw defendant stop the van next to a truck and heard him issue the identical gang challenge to its driver. In addition, the shooter identified himself as a Highland Park gang member. Defendant belongs to Highland Park and has two tattoos that confirm his membership, as well as his loyalty to the gang.
Next, defendant contends the evidence is insufficient to establish that he attempted to kill all of the victims and that he committed willful, premeditated, and deliberate attempted murder. As to Dominguez and Barajas, he claims there is no evidence that he tried to shoot them, as only the fleeing Covarrubia was struck. However, the jury could reasonably conclude that by firing at least six shots (Barajas said she heard seven or eight shots), defendant was shooting at all of the victims, as they were standing in close proximity to one another, and that Dominguez and Barajas managed to avoid injury by immediately dropping to the pavement. As to the premeditated nature of the shooting, the evidence established defendant purposely went into enemy gang territory to commit his crime. He issued his gang challenge, attempted to ascertain whether his victims belonged to a rival gang, and almost immediately opened fire, after denigrating his gang’s enemies. This planned sojourn into rival gang territory for the purpose of committing a violent crime against an enemy provides sufficient evidence that defendant committed an intentional attempted killing that was willful, premeditated, and deliberate.
Relying on the lack of fingerprints on the firearms or the ammunition and the failure of police to have defendant submit to a gunshot residue test, he asserts the firearm allegations must be stricken. For the reasons set forth above, there is sufficient evidence to establish that defendant was the shooter. It necessarily follows that he intentionally discharged a weapon and inflicted great bodily injury as a result.
Finally, defendant attacks the jury finding that the crimes were committed with the intent to promote a criminal street gang. He complains the evidence that he is a Highland Park gang member is weak. Again, he attempts to spin the evidence in his favor by ignoring the contrary inferences that the jury found more persuasive. For example, as to his gang tattoos, he asserts that “[i]t may well be that [defendant] was forced to join that gang and to have those tattoos applied to him for his own personal safety during the 17 months or so after he was arrested, and while he was awaiting trial, in connection with this case.” The jury reasonably found otherwise.
The prosecution’s gang expert testified that defendant’s tattoos meant that he had “put in some sort of work” for the gang. The expert told the jury the motive for the shooting was to enhance the gang’s reputation for violence and defendant’s reputation within the gang. Defendant claims there was no evidence that the victims were gang members and concludes there was no gang motive for the shooting. This is belied by defendant’s gang challenge to the victims, his declaration that he was a Highland Park member, and his statements disparaging Highland Park’s rivals.
II. The Imposition of Consecutive Sentences
Defendant contends that the trial court abused its discretion when it imposed consecutive sentences for the three counts of attempted murder. He argues that application of California Rules of Court, rule 4.425 and the fact that he received an indeterminate sentence militate strongly in favor of concurrent rather than consecutive sentences. He asserts that the trial court’s decision “was beyond the bounds of reason, all of the circumstances being considered.” We disagree.
All further references to rules are to the California Rules of Court.
Citing People v. Salas (2001) 89 Cal.App.4th 1275 and People v. Zepeda (2001) 87 Cal.App.4th 1183, the Attorney General suggests that the trial court erred by aggregating the life sentences for the attempted murder and the discharge of the firearm, and that the matter has to be remanded to the trial court. Nothing in either case supports this view. Given that the life terms for the attempted murder require defendant to serve 15 calendar years prior to becoming eligible for parole (due to the gang enhancement), we see nothing improper with adding the 15 years to the 25-to-life term for the use allegation and imposing a 40-to-life term. The Attorney General requested that we give him additional time to respond to defendant’s sentencing contentions in the event we disagreed with his position. We decline to do so. His alternative arguments should have been presented in the brief.
Section 669 places an affirmative duty on the trial court to determine whether terms imposed for multiple offenses are to be served concurrently or consecutively. The “trial court must expressly state reasons for its decision to impose consecutive prison terms.” (People v. Tillotson (2007) 157 Cal.App.4th 517, 545.) The decision to impose consecutive terms is left to the discretion of the trial court. (People v. Jenkins (1995) 10 Cal.4th 234, 255-256.) “In the absence of a clear showing of abuse, the trial court’s discretion in this respect is not to be disturbed on appeal.” (People v. Bradford (1976) 17 Cal.3d 8, 20.)
Although defendant recognizes that rule 4.425 does not apply when a court imposes consecutive indeterminate terms (rule 4.403 [court rules apply only to sentences imposed pursuant to section 1170]; People v. Murray (1990) 225 Cal.App.3d 734, 750), he nonetheless presents an elaborate analysis of each of the factors, and argues that a proper application of the rule mandates concurrent sentences. Given that the court rule in question does not apply to the imposition of a consecutive indeterminate sentence, we need not discuss defendant’s contentions any further.
Defendant attacks the reasons stated by the trial court for imposing consecutive sentences, and labels them inadequate. We disagree. The court noted that there were three separate victims in this shooting. It stated that although only Covarrubia was struck by the gunfire, all three were in the same proximity of the shooting and were subjected to the danger of being wounded. The court concluded that as there were three targets of defendant’s violent acts, it was appropriate to impose a sentence for each victim. We find no abuse of discretion.
Defendant complains that it is “irrational” to require his continued incarceration into his “later years,” given that only one victim was injured. He also contends that the rehabilitative purpose of the sentencing laws will be achieved through the imposition of one 40-to-life term. Those arguments are best addressed to a trial court, and, indeed, trial counsel presented them during the sentencing hearing. Whether we agree with the sentence that was imposed is not the issue. Having already determined that the trial court did not abuse its discretion, we leave the sentence undisturbed.
Defendant argues that his sentence constitutes cruel or unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. In particular, he contends that the 25-to-life term mandated by section 12022.53, subdivision (d) violates the rule against cruel or unusual punishment and the sentence he has been ordered to serve is grossly disproportionate when considering the offenses he committed and his particular circumstances.
As defendant acknowledges, we have rejected claims that section 12022.53, subdivision (d) constitutes cruel or unusual punishment. (People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19; People v. Martinez (1999) 76 Cal.App.4th 489, 495.) He asserts that those cases were wrongly decided. He cites neither contrary authority nor reasoned argument sufficient to cause us to revisit the issue.
With regard to his proportionality claim, defendant argues that his youth and minor record, while not dispositive, weigh in favor of finding that his sentence constitutes cruel or unusual punishment. He points to the fact that the only person injured during the crime had fully recovered from his wounds by the time of trial, and argues that a 120-year-to-life sentence is excessive. He points out that “someone who committed a cold-blooded, premeditated murder with a knife where there was no special circumstance would receive a sentence of no more than 26 years to life.”
“The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20.) “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” [Citations.]” (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) “Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” (Rummel v. Estelle (1980) 445 U.S. 263, 272.)
Punishment may violate the California Constitution where “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) In making such a determination, we consider the offense and the offender, in particular the degree of danger both present to the community, compare the challenged sentence with those imposed in this state for more serious crimes, and compare the challenged sentence with those imposed for the same offense in other jurisdictions. (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389.) In analyzing the offense and the offender, we “must examine the circumstances of the offense, including the defendant’s motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the defendant’s age, prior criminality and mental capabilities.” (People v. Cox (2003) 30 Cal.4th 916, 969-970.)
Here, defendant came upon his victims, tried to determine whether they belonged to a rival gang, and without warning, opened fire. His motive was to bolster the reputation of his gang and to insult rival gangs in the area. That he managed to hit only one of the victims with his gunfire does not take away from the fact that he fired at three people from a range of about 16 feet, and two of the victims managed to escape serious injury only by diving to the ground. While it is true that defendant was only 21 at the time of the offense, he had already shown a proclivity for violence, as evidenced by two sustained juvenile petitions, one for assault with a deadly weapon and the other for possessing a firearm. There is no evidence that defendant suffers from any mental difficulties. We cannot say that defendant’s sentence for his unprovoked attack on three people spawned by the most senseless of motives is “grossly disproportionate” to the crime or “shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.)
Defendant’s claim that his sentence is unconstitutional because it is greater than the sentence received by a person who is convicted of one murder with the use of a knife also fails. He ignores the fact that his crime involved three victims, not one. If he is going to argue the disproportionate nature of his sentence, he must compare similar acts. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 571 [“‘When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible’”].) As the trial court observed, defendant’s sentence was warranted because he placed three individuals in danger of being shot. Moreover, it was the fact that defendant chose to use a gun that made his conduct more egregious. The act of shooting a firearm subjects innocent bystanders to the threat of being hit by a bullet that has missed its intended target. Defendant has failed to demonstrate that more serious crimes result in the imposition of a lesser sentence in California than that imposed here.
Defendant has not attempted to compare his sentence with those imposed for the same offense in other jurisdictions.
Finally, defendant contends that his sentence is grossly excessive because it cannot be served during his lifetime. He cites Justice Mosk’s concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602, as authority. “Preliminarily, we note that ‘no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]’ [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion, it has no precedential value.” (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.)
In any event, we disagree that defendant’s sentence, which results in a life sentence without the possibility of parole, violates either the federal Constitution (see Harmelin v. Michigan, supra, 501 U.S. 957 [sentence of life without the possibility of parole for possession of 672 grams of cocaine not cruel or unusual]) or the state Constitution (see People v. Retanan (2007) 154 Cal.App.4th 1219 [sentence of 135 years to life for child molestation not cruel or unusual]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520 [same for sentence of 129 years for crimes committed against a single victim]).
As we have not deemed defendant’s sentencing claim to have been forfeited by trial counsel, we need not address defendant’s ineffective assistance of counsel arguments.
III. The Section 12022.53, Subdivisions (b) and (c) Enhancements
In sentencing defendant on the three counts of shooting from a motor vehicle (§ 12034, subd. (c)), the court imposed terms pursuant to section 12022.53, subdivisions (b) and (c), and ordered them stayed pursuant to section 654. Defendant and the Attorney General concur that those sentences must be stricken because the firearm enhancements do not apply to the crime of shooting from a motor vehicle. We agree.
While section 12022.53, subdivision (d) states that its provisions apply to violations of section 12034, subdivision (c), that crime is not listed among those eligible to be enhanced pursuant to either subdivision (b) or (c) of section 12022.53. If a trial court imposes a sentence unauthorized by law, a reviewing court may correct the sentence at any time, even where no objection is raised below. (People v. Smith (2001) 24 Cal.4th 849, 852.) The sentences imposed for the section 12022.53, subdivisions (b) and (c) enhancements on counts 4, 5, and 6 are stricken.
DISPOSITION
The judgment is modified by striking the sentences imposed pursuant to section 12022.53, subdivisions (b) and (c) on counts 4, 5, and 6. As modified, the judgment is affirmed. The superior court is directed to send a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P. J., MANELLA, J.