Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA067335 James Pierce, Judge.
Boyce & Schaefer and Robert E. Boyce, 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, Senior Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant and appellant Reuel Hulbert guilty of the attempted murder of Shannon Cole, finding the crime was committed willfully, deliberately, and with premeditation (Pen. Code, §§ 664, 187, subd. (a)), and that defendant caused great bodily injury to Cole by personally discharging a handgun (§ 12022.53, subd. (d)). The jury also found defendant guilty of the first degree murders of Daniel Chantha, Woodtee Bunthung, and Sakorn Phan (§ 187, subd. (a)), defendant killed his victims by personally discharging a handgun (§ 12022.53, subd. (d)), and the crimes were committed to benefit a criminal street gang (§ 186.22, subd. (b)). Finally, defendant was found guilty of being a felon in possession of a firearm (§ 12021, subd. (a)) with a true finding as to the gang enhancement.
Unless stated otherwise, all further statutory citations are to the Penal Code.
Because the three murders were alleged as special circumstances under section 190.2, subdivision (a), a separate penalty phase trial was held in which the jury fixed the penalty at life without the possibility of parole (LWOP). The trial court imposed LWOP sentences for the murders, plus the 25-year enhancement for personal firearm use causing death and the 10-year gang enhancement on each. For the attempted murder, defendant received a consecutive term of 15 years to life, enhanced by the 25-year enhancement for personal firearm use with great bodily injury. The court imposed a concurrent middle term sentence of 2 years for the firearm possession offense with a consecutive 10-year gang enhancement.
The trial court added that if the special circumstance findings were later invalidated, defendant would be subject to the alternative sentence of 25 years to life for first degree murder.
As we discuss in the final section of our Discussion, the abstract of judgment erroneously lists only two murder convictions (counts 10 and 11 for the Bunthung and Phan murders), along with a second attempted murder conviction for count 6. In fact, count 6 in the amended information referred to the attempted murder of Latisha Cole, on which defendant was acquitted. The abstract of judgment omits reference to count 8, which is the Chantha murder.
In his timely appeal, defendant contends there was constitutionally insufficient evidence to support the convictions for the murders of Chantha and Phan and for the findings of first degree murder as to Bunthung and Phan, based on premeditation and deliberation. He also contends his constitutional right to an impartial jury trial was violated by a prejudicial act of jury tampering and by related acts of misconduct by two jurors. With regard to sentencing, defendant contends the trial court impermissibly imposed: (1) parole revocation restitution fines; (2) consecutive 10-year terms for the gang findings on the first degree murder convictions; and (3) a 10-year gang enhancement on the felon in possession conviction.
As fully explained infra, remand is necessary to correct the various sentencing errors and to correct the abstract of judgment. The judgment is affirmed in all other respects.
STATEMENT OF FACTS
Prosecution
Shannon Cole was in his Long Beach apartment on Raymond Avenue late in the night on November 26, 2003, preparing the Thanksgiving meal for the next day’s celebration with his family. He lived in the apartment with his wife, Latisha Aguilar, their two young children, and his sister Shiwana. Earlier that evening, they had gone grocery shopping. While at the market, he saw a neighborhood acquaintance, Willie Davis. Later that night, he was told someone was at the door. Cole looked outside through the blinds and saw Davis and defendant standing at the front door. Cole knew defendant as a member of the TRG street gang, which was primarily an Asian-American gang, although defendant was African-American.
Cole identified defendant as the “TRG punk who shot me” from a photographic lineup and in court. Approximately one week before the shooting, defendant was in the alley behind Cole’s apartment and asked Cole if he lived there.
The Tiny Rascal Gang, or TRG, is a nation-wide Asian gang with approximately 300 members operating in Long Beach. Its members were predominantly of Southeast Asian background, but its membership was not strictly restricted by race. The gang color is gray, which was chosen to distinguish itself from its enemies, the Crip gangs, whose color is blue. Other gang rivals of TRG include Asian gangs with Crip affiliations, such as Asian Boyz and the Suicidals.
Cole opened the door and asked what they wanted. Davis and defendant said, “You know what the fuck’s up” and pulled out handguns. Defendant drew a small machine gun resembling a “TEC-9” from his sweater and pointed it at Cole’s head. Cole pushed defendant’s weapon away, but defendant fired and a bullet struck Cole in the chest. As Cole tried to disarm defendant, Davis repeatedly shot him in the back. Cole retreated into the apartment, but defendant followed him inside and continued to shoot at him. Aguilar shouted that she was calling the police. Defendant and Davis fled.
An ambulance took the unconscious Cole to the hospital, where he was treated for seven gunshot wounds to his chest, shoulder, and lower back. He was released on New Year’s Eve.
Aguilar recalled hearing a knock at the apartment door. When she asked who was there, the person said, “It’s Tone.” Being suspicious of the late night visit, Aguilar told him that her husband was asleep, but the person said to wake him because it was an emergency. Cole went to the door himself after Aguilar relayed the message. She heard gunshots shortly after her husband went outside. Cole ran back inside, having been shot. Both of the assailants held guns. She saw defendant’s face clearly. At some point during the shooting incident, Aguilar’s finger was grazed by a gunshot, but it did not draw blood.
The jury, however, found defendant not guilty of attempting to murder her.
Shiwana remembered seeing “Delon and his brother Baby D.” at the Food for Less parking lot when she was there with Cole and Aguilar before the shooting. She corroborated Aguilar’s rendition of the shooting incident. Shiwana also identified defendant as one of the shooters who ran inside the apartment in pursuit of Cole. The other shooter was “Baby D.”
Officer Adrian Garcia was assigned to the Long Beach Police Department’s gang enforcement section. At the time of the shooting, he had known Cole for approximately 13 years and got along well with him. In the early morning hours of November 27, he questioned Cole in the hospital. Cole told the officer one of the shooters was a Crip called Baby D. and the other was an African-American from the TRG gang.
Police officers responding to the scene found two expended nine-millimeter casings on the walkway of Cole’s apartment and two.45-caliber expended casings nearby. Investigation of a separate Long Beach shooting scene that same evening at approximately 11:39 p.m. uncovered six expended nine-millimeter casings and six.45-expended casings traced to the same two firearms-a nine-millimeter MAC-11 and a.45-caliber semiautomatic. The former was identified by Cole as the one defendant used to shoot him.
Thonee Chamroeun was an active gang member of the Suicidals, as was his cousin Daniel Chantha. On December 19, 2003, at approximately 3:00 p.m., Chamroeun visited Chantha in the garage of Chantha’s apartment, which opened onto an alley. An hour later, they went into the alley to smoke cigarettes. An African-American male approached them and asked what they were doing. They said, “Nothing. Just smoking a cigarette.” The male “banged on” them by asking what gang they were from. They admitted being from the Suicidals and the male said he was from “Insane, ” a Crip gang that was not enemies with the Suicidals. The male asked if Chantha smoked marijuana and the latter said he did. The African-American male said he would “smoke [Chantha] out” and walked away. Chantha and Chamroeun returned to the garage.
Chamroeun testified the Suicidals and TRG are enemies, but some members get along with each other.
Although Chamroeun denied it at trial, when interviewed by police, he said the African-American male in the alley wore a black leather jacket and asked where he could find Chantha later in the day, so they could smoke marijuana. Chamroeun recognized the African-American male as a TRG member known as “Flamer.” When defendant was subsequently arrested the following January, he identified himself as Flamer of TRG. Chamrouen knew that by testifying against a gang member, he would be considered a “snitch” in the gang community and therefore subject to fatal retribution.
Lara Thach, Chantha’s girlfriend, arrived at the garage at approximately 6:00 p.m. with her brother. The garage was furnished and located near an alley. Chamroeun was there too. A few hours later, her brother and Chamroeun left to go to the mall, leaving Thach and Chantha, who watched a DVD in the garage. At 9:00 p.m., Chantha went outside to smoke a cigarette. Thach heard someone knock on the garage door. She peeked outside and saw Chantha next to the security gate, talking to an African-American male, who wore a black jacket. The male said, “Do you remember me from earlier?” Thach went back to the couch, but before she sat down, she heard gunshots and someone “moaning for their life.” She telephoned 911.
Chantha was found dead in the alley from multiple gunshot wounds. He had received a gunshot to the forehead, left shoulder, right chest, right abdomen, right elbow, right wrist, right and left thighs, and right leg and knee. Two bullets were found in his body. There was stippling found in the area of the gunshot wound to Chantha’s forehead, indicating the gun was fired from a distance of two feet or closer. Four expended.380-caliber casings and one.380-caliber bullet, along with one nine-millimeter casing were found nearby. The nine-millimeter casing found at the scene was fired by the same MAC-11 handgun responsible for the nine-millimeter casings found at the scene of the Cole shooting and the other shooting incident that night.
In addition, records showed four walkie-talkie communications between defendant’s cell phone and that of another TRG member, Roum Mo, in the hour and minutes leading up to the Chantha shooting, which occurred at 9:19 p.m. Roum Mo lived with his three brothers in Long Beach. Their residence was a TRG hang out in 2003 and 2004. Defendant and Roum Mo were part of the same TRG “crew.”
Alfredo Sanchez’s apartment overlooked the alley. As he walked from the garage, through the alley, on his way to his second floor apartment, he heard yelling. Upon entering his apartment, he heard four or five gunshots. Sanchez ran to his bedroom, turned off the lights, and looked out into the alley. He saw two males running down the alley toward 10th Street. They stopped at a parking lot and drove away in a dark Honda.
Roberta Bernardez, who lived near the corner of 11th Street and Lime in Long Beach, heard four gunshots at approximately 9:00 p.m. She peeked outside her front door and saw a “bluish-greenish” late model, likely 1991, Honda Accord driving eastbound on 11th Street towards Lime, where it turned left. She identified a photograph of a Honda owned by Roum Mo’s brother as being the same make, model, and color as the car she observed. Roum Mo’s brother testified that Roum Mo drove that car during that time period.
A March 18, 2004 search of the Myrtle Avenue apartment of Roum Mo’s brother revealed the 1991 Honda Accord parked in the driveway. According to one of Roum Mo’s brothers, on December 2003, Mo had access to their older brother’s green Honda Accord because the older brother did not live with them at the time.
In the nearby alley, between Lime and Atlantic Avenue, Bernardez heard crying. Approaching, she saw a woman standing over a male who appeared to have been shot in the head. Bernardez called and reported the matter to the police. When interviewed by the police at the scene, she told the police that she saw two male Asians, 18 to 20 years old, enter the front and back passenger seats of the green Accord while it was stopped on 11th Avenue.
In December 2003, Navy Lay was Bunthung’s girlfriend and the mother of their three-year-old child. They lived on Olive Avenue in Long Beach. At 9:00 p.m. on December 4, she was standing outside their residence with Bunthung when she heard gunshots. His black Integra was parked there. Officer Bryon Blair arrived the following morning and noted several holes in the residence’s exterior walls near the driveway. He also found five expended.380-caliber cartridge cases in the street by the driveway. Another expended cartridge was on the driveway and had apparently been run over by a vehicle.
Lay and Bunthung went out on Christmas Eve, returning home in the early morning hours. His car was parked in the driveway. After going inside to change, Lay went back outside to close the front gate and saw a green Honda stop in front of her and turn off its headlights. Walking back to the residence, she saw two men, one next to the Honda’s passenger side and the other in the middle of the street. The former had a light complexion; the latter was dark. The recent shooting had made her anxious and vigilant, so she turned and jumped over the wall next to her residence. Looking over the wall, she saw the dark-skinned male run toward their house and reach into his waistband. She screamed to Bunthung. The two stayed inside their house “for a while” before Bunthung left to take his friend home. Shortly after he went outside, Lay heard gunshots; Bunthung and his friend returned to the residence.
Lay testified that the green Honda she saw was smaller than the one depicted in a photograph of the Honda owned by Roum Mo’s brother.
When interviewed by Detective Steven Smith after the incident, Lay said that when they arrived home and exited the car, she saw two males approaching them on foot from a car that had just parked. She warned Bunthung. From behind the wall, she saw the males reenter the car, move it closer to their residence, and approach them again on foot. The male who exited the driver side was African-American; the other was Cambodian. The car was a green Honda Accord. The African-American male reached into his right front pocket.
On December 31, 2003, between 2:00 and 2:30 p.m., nine-year-old Narin San was playing with a friend on the sidewalk of Rose Street in Long Beach. He saw gunfire from two black cars driving in opposite directions, as they passed each other. The car windows were tinted. The car that drove northbound and turned left on 14th Street after the shooting was a black Honda.
Pablo Zapeta, who lived in a nearby apartment at the time of the December 31 shooting, told Officer Roger Montell that he was standing on the sidewalk at the corner when he saw a dark colored car (the black Integra) drive past at such a high velocity that it “bottomed out” on a small dip. Upon turning westbound, it lost control and struck another car. He might have heard gunshots just prior to seeing the cars.
Bunthung was found dead in his black Integra, which had crashed into a parked car in front of 1515 East 14th Street. The driver side window was completely shattered and the seat was covered in broken glass. The window must have been rolled up at the time of the shooting. The keys were in the ignition. On the front passenger floorboard was a.22-caliber Intratec handgun, covered by a sweatshirt; the safety was engaged. Bunthung had received a fatal gunshot to his chest. The nature of the wound indicated that the bullet, a.44-caliber projectile, had first struck the car window before striking the victim.
One of Roum Mo’s brothers, Sarith Sum, lived in an apartment on Gaviota in December 2003. According to his statements to police (later denied at trial), Roum Mo would stay over in the Gaviota apartment. A March 11, 2004 search of that residence uncovered a small caliber handgun magazine inside a box in the boys’ bedroom. A Play Station box with 15 rounds of CCI ammunition and three rounds of PMC.380-caliber ammunition were found in the bedroom closet. Sum told the police those items were owned by Roum Mo, who kept them in Sum’s room. Sum told the detective that he had also seen Mo put a black.380-caliber semiautomatic handgun in a shoebox stored in Sum’s room.
The five.380-caliber casings and the expended bullet from the December 4 shooting at the Bunthung residence were fired from the same firearm. They matched the.380-caliber casings and bullets from the Chantha shooting, having been fired from the same handgun. Markings on the PMC cartridges found in the search of the Gaviota residence had been “cycled through” the same firearm or magazine as the expended casings. The casings found at the Chantha murder scene had the same stampings as the CCI ammunition found there too.
Roum Mo was arrested on December 28, 2003. The police recovered his cellular phone the next day. The phone had a “walkie-talkie” mode. The service provider’s records showed that calls were placed from that phone to TRG members from December 18, 2003, to January 4, 2004.
On January 1, 2004, just before noon, James Simon was driving northbound on Alamitos near 14th Street in Long Beach, when he heard at least four gunshots. Simon saw two young males jogging on Cerritos toward New York Street. One was African-American; the other was Asian or Hispanic.
Sergeant Patrick Burns responded to 15th Street and Orange. A small silver Honda was stopped at the intersection, facing southbound on Orange at a stop sign. Its headlights were on, its engine was running, and the radio was playing. Sakorn Phan, an associate of the Asian Boyz, was in the front driver seat, the victim of multiple gun shots.
When Officer John Jacobs arrived a few minutes later, emergency personnel were treating Phan, who had suffered three gunshot wounds to the chest and shoulder, at least one of which was fatal. Officer Jacobs examined the car after the paramedics took Phan to the hospital. He found three bullet holes in the driver side door. There were two bullet holes in the interior of the passenger side door and a bullet strike on the passenger seat. Both the driver and passenger side windows had been smashed, leaving glass fragments inside the vehicle. Four bullets were found inside the car, including one on the passenger side floor board.
The two expended bullets removed from Phan’s body and the four from the shooting scene were fired from two different weapons. Five of them were.44-caliber Smith and Wesson projectiles. The others were Charter Arms.44-caliber special projectiles. A bullet from the Bunthung shooting, along with two bullets from the Phan scene and one from his autopsy, had been fired by the same firearm later recovered from defendant.
Additional Evidence
Defendant was arrested on January 5, 2004, at 2:30 p.m. in Long Beach. Two plainclothes officers followed defendant who was walking. When defendant saw a patrol car in the process of issuing a citation, defendant hid. Two minutes later, defendant walked to a park. Defendant met with two African-American males. As three officers approached defendant, he tried to run away, but was caught and arrested. Officer John Bruce removed a loaded stainless steel.44-caliber Smith and Wesson magnum revolver from defendant’s waistband. It was the same weapon that fired two of the bullets found at the Phan crime scene and one from his autopsy. That same magnum could have fired the bullet recovered from Bunthung. A separate.44-caliber special Charter Arms revolver fired one of the bullets found at the scene and one from the autopsy.
TRG member Machkara Xen was 13 years old in December 2003. He knew defendant as a fellow gang member. “Lil Boy, ” “Lil Decker, ” and “Nonsense” or “T” were also TRG members. On September 16, 2004, probation officer James Lay spoke to Xen after he had been taken into custody for a probation violation. On Xen’s request, Lay observed an interview between Xen and detectives. No threats were made to Xen. Xen eventually admitted knowing defendant and told Detective Bryan McMahon that he had seen defendant with two.44-caliber handguns, a MAC-11 and a “Five Star 9.” Xen had seen defendant with the chrome magnum that was in defendant’s possession at the time of defendant’s arrest.
Lil Decker is Kimsaun Moun, the younger brother of TRG member Kolal “Decker” Moun.
During his custodial interview, Xen told the officers that in early December, he had gone to the mall with defendant and Lil Decker. They had a confrontation with Bunthung, who insulted their gang and challenged them to a fight. Defendant replied, “Don’t trip, catch you later”-meaning “the business would be taken care of later.” A few days after Bunthung’s killing, defendant showed Xen a newspaper article about the Bunthung killing. Defendant admitted that he had killed Bunthung. Defendant was in a stolen, dark colored Honda, which he parked. When he saw Bunthung turn the corner toward him, defendant said he fired a round to scare Bunthung, but the shot proved fatal. Defendant patted a bulge in his pocket and told Xen that he used the “big one” to kill Bunthung. According to Xen, the “big one” was the chrome magnum handgun. Xen had seen that handgun at Christmas time, when defendant and another TRG gang member picked Xen up in a Mercedes. Defendant was in the front passenger seat and told Xen there were two.44-caliber handguns in the backseat, one of which was a chrome magnum. The other was a blue steel handgun with a shorter barrel.
At the time of Xen’s interview, the police had recovered the MAC-11 handgun. Xen told the detective he had seen such a weapon sometime between October and Thanksgiving of 2003. A TRG member from Temecula took it out of his car’s trunk at Lil Decker’s house. A few days later, defendant was cleaning the firearm at another gang member’s house. Xen said defendant had it for approximately one month.
The prosecution introduced a number of recorded telephone conversations defendant placed from jail following his arrest. On February 8, 2004, defendant spoke to his aunt, Patricia Webb. Defendant admitted shooting someone “[a]ll over the place” and was ashamed. He was aware that the victim had “fully recovered” and planned to testify against him. On February 11, 2004, defendant, calling himself Lo, telephoned Xen, whom he referred to as “Juvie.” Defendant made a number of statements identifying himself as a member of TRG. He also mentioned that the police found a “burner”-a handgun-which he referred to as the “big one.” On February 16, 2004, defendant placed a telephone call to another TRG member, in which he requested that the gang member make sure to have “somebody” in the courtroom give “the eye” to any adverse witness.
Prosecution gang expert, Detective Joe Pirooz, explained how defendant’s multiple tattoos were indicative of gang affiliation. Unlike the Asian Boyz, the TRG gang rarely committed crimes with non-gang members. The Asian Boyz are aligned with the Crips and the Suicidals, and were rivals of TRG. Bunthung was a member of the Asian Boyz. Chantha was a member of the Suicidals; his moniker was “Scab.” Phan was an affiliate of the Asian Boyz. Phan lived with Johndy Ros, an Asian Boyz member. Chamrouen was a member of the Suicidals, related to Chantha.
Xen was known as “Juvie” and belonged to the TRG gang. He lived in the TRG “safe house, ” where other gang members would stash firearms or hideout. The gang members liked to have Xen hold their weapons because he had a physical disability that made law enforcement personnel reluctant to incarcerate him.
In the gang culture, “snitch” is a derogatory term for persons who cooperate with the police. Gang members have a code whereby it is understood that gang members do not give information to authorities or testify against other gang members. Moreover, it is understood that a person caught informing against a gang member will be subject to violent retribution. It is understood in the gang culture that a member gains respect within a gang by committing crimes-“doing dirt” or “putting in work”-for the gang. A member’s status increases with each such act of violence. The killings of Chantha, Bunthung, and Phan would benefit TRG because they would eliminate gang rival members. The prosecution expert pointed out that Phan was killed in a location very close to the Cerritos Avenue residence of Big and Lil Decker, as well as Phan’s own residence.
Defense
Martha Pereida testified that on the evening of December 19, 2003, she saw two Asian youths-16 or 17 years old-dressed in black, riding bicycles down the alley. Shortly thereafter, she heard a gunshot, and saw them run behind the victim and shoot him three times to make sure he was dead. As Pereida ran to the victim’s mother, who was screaming for help, she saw the shooters run down the alley and flee in a car. Defendant was not one of the two shooters.
It was stipulated that no bicycles were found in the alley during the police investigation after the shooting incident.
DISCUSSION
Sufficiency of Evidence
Defendant advances four interrelated claims regarding the sufficiency of evidence, contending there was constitutionally insufficient evidence to support the convictions for the Chantha and Phan murders, as well as for the first degree murder findings as to Bunthung and Phan based on premeditation and deliberation. As we explain, none of those arguments is well taken.
In assessing a claim of insufficiency of evidence, the appellate court’s task is to review “the whole record in the light most favorable to the judgment... to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) Where substantial evidence supports the jury’s finding, and other circumstances support a contrary finding, the jury’s finding will not be reversed. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
A willful, deliberate, and premeditated killing “is murder of the first degree. All other kinds of murders are of the second degree.” (§ 189.) There are three common categories of evidence bearing on the existence of the premeditation and deliberation element of first degree murder-planning activity, motive, and the manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Anderson (1968) 70 Cal.2d 15, 25-27.) These “factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.” (People v. Perez, supra, at p. 1125.) In assessing the sufficiency of the evidence as to the element of premeditation and deliberation, “‘[t]he true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes... those homicides... which are the result of mere unconsidered or rash impulse hastily executed.’ [Citations.]” (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated and remanded on other grounds in California v. Velasquez (1980) 448 U.S. 903; People v. Hughes (2002) 27 Cal.4th 287, 370-371.)
We discuss the murders chronologically.
The Chantha Murder
Defendant argues there was no substantial evidence to support the reasonable inference that he was one of the shooters because the only reliable evidence linking defendant to the shooting was the use of the MAC-11 in that incident in the Cole shooting. The argument fails because the evidence of common gun usage supported a reasonable inference of identity, as it was amply corroborated and buttressed by evidence of gang motive.
The fact that a nine-millimeter projectile found at the scene of Chantha’s murder had been fired from the same distinctive weapon defendant used to shoot Cole, less than a month before, is in itself crucial evidence of defendant’s identity as one of the shooters in the subsequent incident. Defendant was further tied to that weapon by the statements of defendant’s TRG confederate, Xen, who told Detective McMahon that he had seen defendant in possession of four handguns, including a MAC-11. As the jury was instructed, pursuant to Judicial Council of California Criminal Jury Instructions (2004-2005) CALCRIM No. 318, the witness’s prior inconsistent statements were admissible both for impeachment and for their truth. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1144.) Xen had also seen defendant cleaning that firearm at another gang member’s house sometime after the Chantha shooting. According to Xen, defendant possessed the weapon for approximately one month, which included the time of the Chantha killing.
Defendant’s identity as one of the shooters was bolstered by the statements of Chamroeun, who said an African-American “banged on” Chantha and him some hours before the murder. According to Chamroeun’s statements to the police, the African-American wore a black leather jacket and said he would return later in the day. Chamroeun told the detective the African-American male was a TRG member known as Flamer, which was the same moniker defendant admitted to when arrested. Moreover, defendant was one of the few African-Americans affiliated with TRG. We also note that Thach testified that the African-American male who met with Chantha just before the shooting wore a black jacket and said, “Do you remember me from earlier?”
There was more evidence of defendant’s participation in the shooting, based on additional testimony that the killing was gang-motivated. Chantha was a member of one of TRG’s rivals, the Suicidals, a fact that the African-American male verified at the earlier meeting in the alley. Phone records showed communications between defendant and a closely associated TRG member, Roum Mo, in the minutes leading up to the shooting. Additionally, the getaway car was identified as closely resembling the Honda that Roum Mo was known to drive at that time.
Taken together and viewed in the light most favorable to the prosecution, this evidence supported a solid, reasonable, and reliable inference that defendant was one of the persons who murdered Chantha. (See People v. Johnson, supra, 26 Cal.3d at p. 578; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.)
The Bunthung Murder
With regard to the Bunthung shooting, defendant argues there was insufficient evidence to support a finding of premeditation and deliberation because the prosecution failed to present substantial evidence of planning activity, the evidence of gang motive was negligible, and the manner of killing was more consistent with defendant’s statement that he fired only to scare, not kill, his victim. We disagree.
First, the evidence of motive was very strong and pointed specifically to defendant. Not only was Bunthung the member of a rival gang, the Asian Boyz, but he and defendant had a gang-related confrontation at a shopping mall approximately one month before. At that time, Bunthung made gang taunts toward defendant and challenged defendant to fight. Defendant responded that he would deal with the challenge in the future. According to Xen, defendant and Bunthung were “real enemies” and “hate[d] each other badly.” In addition, not only did defendant admit killing Bunthung, but he indicated to Xen that he had used his.44-caliber magnum handgun to do it. The fatal bullet could have been fired from that weapon-the same firearm later used to kill gang rival Phan. Defendant possessed the firearm at the time of his arrest, and had been seen with the firearm on prior occasions.
Planning activity can reasonably be inferred from the two incidents in front of Bunthung’s residence prior to the fatal shooting incident. First, on the evening of December 4, there were gunshots fired at the Bunthung residence while defendant was standing outside where his black Integra-the car he was driving at the time of the fatal shooting-was parked. The five expended.380-caliber cartridge cases in the street by the driveway were tied to the.380-caliber handgun used in the Chantha killing and to the ammunition that defendant’s close gang confederate, Roum Mo, hid at his family’s residence.
Second, in the early morning hours of Christmas, Bunthung’s wife saw a green Honda, consistent with the one Roum Mo drove, stopped in front of the Bunthung residence. One of the two men who approached her and Bunthung, while reaching for a gun, had a dark complexion. When Bunthung left his home sometime later, he was forced back inside by gunshots. Those incidents provided evidence that defendant and his gang associates, knowing where Bunthung lived and what car he drove, had tried to ambush him twice.
Defendant errs in asserting that the manner of killing is inconsistent with an inference of premeditation and deliberation. Although Bunthung was killed by a single gunshot fired from one vehicle into another, the circumstances were indicative of an ambush, not a fortuitous meeting or impulsive act. The fact that the bullet struck Bunthung in the chest supports an inference that he intended to kill, not merely to frighten.
In sum, when viewed in the light most favorable to the judgment, the record supports the reasonable inference that defendant, harboring a gang-motivated hatred of Bunthung and having previously attempted to shoot him-and knowing the car his victim drove and where he lived-carried out a plan of shooting as a means of resolving their earlier dispute. (See People v. Halvorsen (2007) 42 Cal.4th 379, 421-422.)
The Phan Murder
In challenging the evidence of defendant’s identity as the person who shot Phan, defendant asserts the only substantial evidence tying him to the shooting was his possession of the murder weapon at the time he was arrested, some four days afterward. Such evidence is insufficient, defendant contends, even if one credits Xen’s statement that defendant possessed the murder weapon the day before the Phan shooting. As to the finding of premeditation and deliberation, defendant argues the evidence of a gang related motive was slight because the victim was described as an Asian Boyz “affiliate, ” rather than a full-fledged member, and because the manner of the killing did not bespeak a preexisting intent to kill and there was no significant evidence of planning activity. As we explain, defendant greatly minimizes the probative force of the prosecution’s evidence as to identity, as well as to premeditation and deliberation.
In arguing against the inference of identity as the shooter from defendant’s possession of the murder weapon, defendant points to testimony from the prosecution gang expert that TRG members typically shared guns, which they would store at a “safe house” such as the Xen residence. That argument overlooks the fact that the expert cautioned that TRG members did not obtain and use firearms exclusively in that manner. Indeed, the fact that defendant was caught in personal possession of the firearm when arrested tended to refute the notion that the chrome Smith and Wesson magnum was a community firearm, kept in a safe house. Additionally, Xen’s statements showed that on various occasions prior to and after the Phan shooting, defendant confessed pride of ownership over the chrome handgun he had named the “big one”-and there was no evidence that other gang members used the firearm. Most significant, however, was the evidence that defendant had used the same.44-caliber magnum to kill Bunthung in a gang-related shooting of an Asian Boyz member within 24 hours of the Phan shooting. Such evidence goes far beyond mere possession of the murder weapon. Witness testimony that an African-American male was seen hurrying away from the murder scene with a male who appeared either Asian or Hispanic further supports the reasonable inference of identity.
Accordingly, defendant’s reliance on two federal court decisions-Newman v. Metrish (E.D. Mich. 2007) 492 F.Supp.2d 721 and Pilotti v. Superintendent, Great Meadow Correctional Facility (S.D.N.Y, 1991) 759 F.Supp. 1031-is misplaced. The factual circumstances in those cases were materially different. Most significantly, in neither case was there evidence that defendant had committed a murder of another gang member within 24 hours with the same weapon. “In any event, we are not bound by the decisions of lower federal courts.” (People v. Mejia (2007) 155 Cal.App.4th 86, 99, citing People v. Avena (1996) 13 Cal.4th 394, 431.)
Defendant’s attack on the jury’s finding of premeditation and deliberation suffers from closely related failings. As with the Bunthung murder, the evidence of a gang-related motive to kill Phan was very strong. While it is true the prosecution expert testified that Phan was “an affiliate of Asian Boyz, ” there is nothing in the record to support his appellate assertion that this level of affiliation made him any less a rival to TRG members. Indeed, the expert added that Phan lived in the same house as Johndy Ros, “who was an Asian Boyz.” The fact that defendant had murdered another Asian Boyz under closely similar circumstances, only hours before, bolsters the inference of a gang motive.
Finally, the manner of the killing supports a stronger inference of planning than one of an “‘unconsidered or rash impulse hastily executed.’ [Citations.]” (People v. Velasquez, supra, 26 Cal.3d at p. 435; see People v. Manriquez (2005) 37 Cal.4th 547, 577 [ample evidence supported the inference that the killing resulted from a preexisting reflection, rather than an unconsidered or rash impulse, where the victim was shot repeatedly several minutes after a verbal altercation with defendant]; People v. Morris (1988) 46 Cal.3d 1, 22-23 [the defendant’s possession of a loaded gun in advance of the killing, and rapid getaway, are evidence of planning activity]; People v. Pride, supra, 3 Cal.4th at p. 247 [circumstances and manner of killing supported two plausible motives for murder].) There was no evidence that Phan made any aggressive or provocative actions. To the contrary, he appeared to be a wholly unsuspecting victim, who was listening to his car radio with the windows rolled up, when he was killed by a hail of more than four gunshots, three of which struck him in the upper body. The fact that there were two guns fired into Phan’s body and car further bolsters the reasonable inference that the killing was a pre-planned concerted ambush.
In sum, the evidence of premeditation was more than sufficient under the constitutional standards set forth in People v. Johnson, supra, 26 Cal.3d at page 578 and Jackson v. Virginia, supra, 443 U.S. at pages 317-320.
Jury Claims
After the matter had been submitted to the jury and prior to the jury’s submission of its guilt-phase verdicts, Juror No. 6 received a short, cryptic, and possibly threatening message on his voice mail, which he privately played to Juror No. 2. Shortly after the verdicts were rendered, the foreperson, Juror No. 3, reported the matter to the bailiff, who immediately informed the trial court. After a thorough investigation, it was confirmed that the message was not a serious threat, but was left by a work associate of Juror No. 6, who apparently was upset at the amount of time the juror was spending away from work. The court denied defendant’s motion for mistrial, finding none of the other jurors knew about the message prior to the sealing of the verdicts, and no substantial likelihood the third party information caused bias against defendant.
Defendant argues his constitutional right to an impartial jury trial was violated by a prejudicial act of jury tampering-the third party’s voicemail message-and by the failure of the two jurors to immediately report the message to the trial court, which he characterizes as misconduct. As we explain, even assuming the voicemail message and the jurors’ delayed reporting amount to jury tampering and misconduct, the court’s finding of no significant likelihood of prejudice was well-informed and wholly supported by the record.
The governing legal standards are well established: “An accused has a constitutional right to a trial by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722 (Irvin); In re Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings); see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110 (Weathers).) An impartial jury is one in which no member has been improperly influenced (People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler); People v. Holloway (1990) 50 Cal.3d 1098, 1112 (Holloway)) and every member is “‘capable and willing to decide the case solely on the evidence before it’” (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 554 (McDonough), quoting Smith v. Phillips (1982) 455 U.S. 209, 217 (Smith)).” (In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton).) As the trial court understood, prejudice can arise even when the potentially prejudicial conduct was instigated by a third-person, not a juror. “A sitting juror’s involuntary exposure to events outside the trial evidence, even if not ‘misconduct’ in the pejorative sense, may require similar examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation. (See, e.g., Remmer v. United States (1954) 347 U.S. 227, 229; People v. Cobb (1955) 45 Cal.2d 158, 161 (Cobb); People v. Federico (1981) 127 Cal.App.3d 20, 38-39 (Federico).)” (Hamilton, supra, at pp. 294-295.)
“Misconduct by a juror, or a nonjuror’s tampering contact or communication with a sitting juror, usually raises a rebuttable ‘presumption’ of prejudice.” (Hamilton, supra, 20 Cal.4th at p. 295.) We resolve the question whether an individual verdict must be overturned for jury misconduct or irregularity pursuant to an objective, substantial likelihood test. “Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (Id. at p. 296.)
In making this inquiry, our Supreme Court cautions: “The standard is a pragmatic one, mindful of the ‘day-to-day realities of courtroom life’ (Rushen v. Spain (1983) 464 U.S. 114, 119) and of society’s strong competing interest in the stability of criminal verdicts (id. at pp. 118-119; [citation]). It is ‘virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ (Smith, supra, 455 U.S. at p. 217.) Moreover, the jury is a ‘fundamentally human’ institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution.” [Citation.]” (Hamilton, supra, 20 Cal.4th at p. 296.) In a similar vein, it is recognized that the presumption of prejudice arising out of juror misconduct “does not mean that every insignificant infraction of the rules by a juror calls for a new trial. Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from having a fair trial, the verdict should not be set aside.” (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507 (Enyart); Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1445 (Bandana Trading Co.).)
In reviewing the trial court’s ruling, “we accept the trial court’s credibility determinations if supported by substantial evidence. (People v. Nesler (1997) 16 Cal.4th 561, 582.)” (Enyart, supra, 76 Cal.App.4th at pp. 507-508, fn. omitted.) “However, with narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jury’s impartiality may be challenged by evidence of ‘statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly, ’ but ‘[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror... or concerning the mental processes by which [the verdict] was determined.’ (Evid. Code, § 1150, subd. (a), italics added; see People v. Hutchinson (1969) 71 Cal.2d 342, 349-350 (Hutchinson).) Thus, where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other senses’ (Hutchinson, supra, 71 Cal.2d at p. 350), which suggests a likelihood that one or more members of the jury were influenced by improper bias.” (Hamilton, supra, 20 Cal.4th at p. 294, fn. omitted.)
Here, the record reflects that the jury began its deliberations following the lunchtime break on Friday, December 5, 2008. The following Tuesday at 3:10 p.m., the jury indicated it had reached its verdicts. Because the trial court was unable to have the verdicts rendered that afternoon, the verdict forms were sealed and given to the bailiff. When trial proceedings commenced on Wednesday morning (December 10), the verdicts were read in open court and the jurors individually swore they had given their true and correct verdicts. As the jurors exited the courtroom, the foreperson (Juror No. 3) told the bailiff that another deliberating juror had received a possible “crank call” containing threatening language, which was not taken seriously.
That same day, the parties and the trial court agreed the foreperson should be questioned. The foreperson first heard about the voicemail message just after the verdict forms had been sealed and the jurors were leaving the juror room on Tuesday afternoon. The foreperson had not heard the message and did not know which juror received it, but believed that Juror No. 2 had heard the message. The court decided to conduct a complete investigation of the matter. Juror No. 2 was questioned carefully concerning his knowledge of events surrounding the voicemail message. In essence, he was alone in the jury room with Juror No. 6, waiting for the others to arrive on Monday or Tuesday morning. Juror No. 6 asked Juror No. 2 to listen to a message left on Juror No. 6’s cell phone. The message was not “real clear, ” but Juror No. 2 recalled it cautioned the juror to “be careful what you decide.” Juror No. 2 did not discuss the message with anyone else until a few days later when he decided he should mention it to the foreman.
Juror No. 6 was questioned next. He recalled discovering the message on Monday morning. He played it to Juror No. 2 before the others arrived because it was difficult to understand and he wanted to verify what it said. Juror No. 6 believed it was a “crank call.” He had left the phone at home, but agreed to bring it to court. The trial court denied the defense motion for mistrial, finding more investigation was required to determine what occurred and how it affected the jurors. That afternoon, the court listened to the message, which it found difficult to decipher even on repeated listenings. As the court understood the message, its content was: “Hey Juror Six. You better watch out, boy. They out looking for you.” The court disagreed with the defense assertion that the message must be understood as a serious threat that necessarily compromised the jury’s objectivity, pointing out that it could have been a prank instigated by a relative or someone at work. Moreover, the court did not perceive that the two jurors were significantly troubled by the message, based on the manner in which they reported the discovery to the court: “I got the impression they just kind of shucked it off and moved on.” Nevertheless, the court requested the police to conduct an immediate investigation into the matter.
When court proceedings resumed on Friday, December 12, the defense made another request for a mistrial based on information from the prosecution that another deliberating juror had heard about the message. The trial court informed the parties that the police investigation had determined the identity of the person who left the message and that it was not gang related. In addition to the information received from the police, Juror No. 6 informed the bailiff that he had independently “figured out” that the message was left by that same person identified by the police. After extended discussion, the court ordered that a hearing be conducted the following Monday, at which time each of the deliberating jurors would be separately examined as to their knowledge of the message and their ability to continue as jurors in the penalty phase. Examination of Juror No. 6 established that a work associate of his had admitted to leaving the message. The associate was angry because jury service had caused him to miss a work opportunity with the juror.
After each of the 12 jurors had been thoroughly questioned, it became clear that only Jurors Nos. 2 and 6 were aware of the message prior to the sealing of the verdict forms. Further, contrary to defense counsel’s initial impression, none of the other jurors had made any misrepresentations about their conduct. Based on its examination of the message itself and the objective facts concerning its disclosure-and excluding any evidence as to the jurors’ subjective reasoning processes-the trial court found any presumption of prejudice arising out of the two jurors’ exposure to the message had been rebutted. First, the message was extremely brief and ambiguous in meaning. It did not convey a direct threat and its source was unknown. As such, there was no substantial likelihood the two jurors’ objectivity had been compromised. Second, the court found the jurors’ testimony to be credible and none of them conveyed the impression of being significantly affected by the message. Further, to the extent any of the jurors had committed violations of the admonition not to speak about the trial matters outside of court, those conversations occurred after the guilty verdicts had been read and were otherwise of no significance.
Our review of the record supports the trial court’s findings and conclusions. Contrary to defendant’s assertion, the mere facts that the message conveyed a threat and Jurors Nos. 6 and 2 initially felt some concern and fear from the message does not mean a presumption of bias could not be rebutted under the circumstances. As the trial court sensibly explained, where the source of the threat is unknown and where there is a serious doubt whether the threat is a prank, it is quite possible that any affect on the juror would be negligible or evanescent, even when the trial itself contained testimony concerning gang retribution against “snitches.” Defendant makes much of the fact that the caller had obtained the juror’s telephone number as giving the threat far greater reality and force, but again that would only be the case if the juror knew the source of the threat and the circumstances of the disclosure. Where, as here, the phone was issued by the juror’s employer and the juror had a strong suspicion that the caller was a work associate, wholly unrelated to defendant or his gang, there is no reason to assume the juror felt seriously threatened-much less that his objectivity would be compromised.
Taken all together, the objective circumstances concerning the voicemail message, even when “interpreted as an improper attempt to intimidate” Juror No. 6, “give rise to no substantial likelihood that it resulted in actual bias against [defendant].” (Hamilton, supra, 20 Cal.4th at p. 306.) Consistent with Hamilton, the trial court’s investigation revealed the episode to be “brief, isolated, and ambiguous.” (Ibid.)
With regard to the prejudice inquiry, we further note that the jury had been instructed not to “allow anything that happens outside of the courtroom to affect [its] decision unless [the court] tell[s] you otherwise.” The jury’s acquittal of defendant for the attempted murder of Cole’s wife provides additional objective corroboration that the jury followed that instruction and was not biased. Moreover, from our discussion of the sufficiency of evidence, it is clear we need not resort to bias to explain the jury’s guilty verdicts.
Defendant also argues that the failure of Jurors Nos. 6 and 2 to immediately inform the trial court of the message proves the jurors not only committed misconduct, but shows they were negatively influenced by the message. However, the jurors’ conduct is perfectly consistent with the trial court’s contrary findings-the delayed disclosure resulted from the fact that the two jurors placed so little credence in the message and were so little affected by it that they saw no need to report it. Certainly, in terms of Juror No. 6’s decision to play the message to Juror No. 2, it appears that he did so because the message was so difficult to understand. Such conduct falls squarely within the rule that a verdict shall not be set aside based on technical misconduct of such a “trifling nature” that it lacks a natural tendency to prevent either party from having a fair trial. (Enyart, supra, 76 Cal.App.4th at p. 507; Bandana Trading Co., supra, 164 Cal.App.4th at p. 1445.)
The jury was instructed at the start of trial: “If you receive any information about this case from any source outside of the trial, even unintentionally, do not share that information with any other juror. If you do receive such information or if anyone tries to influence you or any juror, you must immediately tell the bailiff.”
Sentencing
For the three murders, the trial court imposed sentences of LWOP, enhanced by the 25-year enhancement for personal firearm use causing death, and the 10-year gang enhancement on each. In defendant’s first sentencing claim, he argues the court impermissibly imposed section 1202.45 parole revocation fines of $5,000 because his LWOP sentences precluded any parole term. The Attorney General concedes the point, citing our decision in People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan).
We disagree with both parties’ assessment of both the record and the law, and conclude as follows: (1) the trial court did not orally impose any parole revocation fines under section 1202.45; (2) the abstracts of judgment and minute order from the sentencing hearing incorrectly state that parole revocation fines were imposed; and (3) a parole revocation fine was mandatory under section 1202.45 because defendant was sentenced to a determinate term as a result of the conviction under section 12021, subdivision (a)(1). (People v. Brasure (2008) 42 Cal.4th 1037, 1075 (Brasure).)
We begin with a review of the reporter’s transcript of the probation and sentence hearing. In imposing sentence, the trial court made no reference to a parole revocation fine under section 1202.45. Instead, the only reference to a fine was the court’s imposition of “a restitution fund payment as to each count one, three, five, and six in the amount of $5,000, on each being a completely separate victim.” Following the imposition of sentence, defense counsel argued “restitution fund fine orders are not appropriate in a case in which he is not eligible for parole.” The court did not respond to counsel’s request that the court “vacate those orders and remove those.”
Under section 1202.4, subdivision (b), the trial court must impose a separate restitution fine of between $200 and $10,000 in every case in which a person is convicted of a felony, in the absence of compelling reasons not to impose the fine. Section 1202.45 requires imposition of a parole revocation restitution fine in the same amount as the section 1202.4 restitution fine in every case in which the sentence includes a period of parole. As the court made no reference to a parole revocation fine, and because a restitution fine under section 1202.4, subdivision (b) was appropriate, we conclude the court properly imposed the $5,000 restitution fines.
However, in doing so, the trial court erred by not imposing a similar $5,000 parole revocation fine because defendant was subject to a determinate sentence on the charge of being a felon in possession of a firearm. In Brasure, our Supreme Court held that a parole revocation fine is mandatory under section 1202.45 in every case in which there is at least one count with a determinate sentence, even if the defendant is sentenced to death in other counts. (Brasure, supra, 42 Cal.4th at p. 1075.) The Supreme Court limited our opinion in Oganesyan to situations in which the defendant is sentenced to LWOP and other indeterminate sentences. The defendant in Oganesyan was sentenced to LWOP for murder and an indeterminate term for a second degree murder. “As in Oganesyan, to be sure, defendant here is unlikely ever to serve any part of the parole period on his determinate sentence. Nonetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine. Defendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked.” (People v. Brasure, supra, 42 Cal.4th at p. 1075.)
Here, the trial court imposed a determinate term for the felon in possession of a firearm count, which required imposition of the suspended section 1202.45 parole revocation fine. Upon remand to the trial court to resolve other sentencing issues, we order that a parole revocation restitution fine be imposed.
Defendant’s second sentencing claim is that the trial court impermissibly imposed consecutive 10-year terms for the gang findings on the murder convictions. The parties agree this aspect of the sentencing was unauthorized. Because defendant violated section 186.22 by committing a felony punishable by life imprisonment and for which he received an LWOP term, subdivision (b)(5) applied, which provides for a 15-year minimum parole eligibility date. (People v. Lopez (2005) 34 Cal.4th 1002, 1010-1011.) The parties also agree the court’s imposition of a 10-year gang enhancement on the felon in possession conviction was unauthorized because the applicable provision of section 186.22-subdivision (b)(1)(A)-specifies imposition of “an additional term of two, three, or four years at the court’s discretion.” The 10-year enhancement, on the other hand, is available only where the underlying conviction is a specially defined “violent felony.” (§ 186.22, subd. (b)(1)(C).) Accordingly, the matter must be remanded for the trial court to exercise its sentencing discretion.
Finally, as the Attorney General points out, the abstract of judgment erroneously lists only two murder convictions (for the Bunthung and Phan murders, counts 10 and 11), along with a second attempted murder conviction for count 6. In fact, count 6 in the amended information referred to the attempted murder of Aguilar, on which defendant was acquitted. The abstract of judgment also omits reference to count 8, which is the Chantha murder. In light of the necessity of sentencing remand, any such errors can be addressed in the new abstract of judgment.
DISPOSITION
The 10-year gang enhancements under Penal Code section 186.22 are stricken in favor of imposition of the 15-year minimum parole eligibility dates under subdivision (b)(5) for the three murder convictions. The matter is remanded for the trial court to exercise its discretion in fixing the term of the gang enhancement under section 186.22 subdivision (b)(1)(A), as to the felon in possession of a firearm conviction. The trial court shall impose and stay a parole revocation fine in the amount of $5,000 as to the felon in possession of a firearm charge. All references to parole revocation fines as to the counts with a sentence of life without the possibility of parole are stricken. A corrected abstract of judgment shall be forwarded forthwith to the Department of Rehabilitation and Corrections. In all other respects, the judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.