Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB800271, Donna G. Garza, Judge.
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, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Daniel Rogers, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
Jesse Lopez, defendant, ran up and shot the victim, Carlos Bermudez Ortuno (Ortuno), shortly after a verbal confrontation over the fact Ortuno had showed disrespect for defendant and his gang, 7th Street, a subset of the West Side Verdugo gang, by laughing while talking to a neighbor. He was convicted of premeditated attempted murder (Pen. Code, §§ 664/187 subd. (a)) by a jury, which also found that defendant had committed the offense for the benefit of a street gang (§ 186.22, subd. (b)), and discharged a firearm in the commission of the offense. (§ 12022.53, subd. (d).) He was sentenced to an aggregate term of 42 years to life in state prison and appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that the trial court erred (1) by admitting unnecessarily prejudicial gang expert testimony; (2) by permitting the gang expert to render an improper opinion as to defendant’s subjective intent; (3) in sentencing defendant to seven years to life for the attempted murder count and adding a 10-year gang enhancement; and (4) erred in denying presentence credit for time spent in juvenile hall. The People concede there was sentencing error and error in calculating credits, but argues that the issues relating to the admission of gang expert testimony were forfeited by defendant’s failure to object. We agree the sentence must be modified but otherwise affirm the conviction.
BACKGROUND
On December 28, 2007, Ortuno and Joel Pastrana (Pastrana), who lived in the garage of Ortuno’s family’s residence, were in the front yard of their residence on 7th Street drinking beer, happy at the prospect of possibly getting jobs after filling out employment applications. While Ortuno and Pastrana chatted, a car pulled up in front of the house next door. There were four occupants in the vehicle: the driver, defendant, a woman, and the next door neighbor Rodolfo. After the car pulled up in front of Rodolfo’s house, Rodolfo exited the vehicle. Ortuno and Pastrana joked with Rodolfo about seeing him leave just minutes before in a white truck, and returning in the car.
Rodolfo was known also as Celyne, owing to the fact he dressed as a woman. For clarity and consistency, we refer to him as Rodolfo, although various witnesses refer to him as Celyne.
The driver of the car (later identified as defendant’s brother Jose Lopez) got out, approached Ortuno, and demanded to know why Ortuno and Pastrana were laughing and what they were looking at. Ortuno explained they were talking to Rodolfo, and the driver insulted Ortuno. Defendant then got out of the vehicle; both defendant and the driver of the car began to assault Ortuno. In the course of the confrontation, the driver hit Ortuno once and defendant struck Ortuno on the arm, although Ortuno was not injured.
Defendant told Ortuno he did not know who he was messing with, that they were from 7th Street. 7th Street is a subset of a San Bernardino Hispanic street gang known as Westside Verdugo. Then defendant turned to the driver and asked where the gun was. Defendant then told Ortuno they would return at night. Defendant and his brother then left in the car.
Minutes later, while Ortuno and Pastrana were still in the front yard, defendant and his brother returned on foot, running toward Ortuno’s residence. Defendant pulled a gun out from his waist band and fired several shots at Ortuno, hitting him in the leg, shoulder and arm. From a window inside the residence, Ortuno’s mother saw defendant raise his shirt revealing the gun and shoot the weapon, although he seemed to have difficulty handling the weapon. She grabbed a machete and ran outside. Defendant was running away when she got outside. The police were called and Ortuno was transported for treatment of his injuries.
Rodolfo knew defendant’s family well, including his mother Barbie and his stepfather Erlindo Honesto. Rodolfo was frightened of Barbie and Erlindo Honesto, and knew that defendant and his brother Jose were both members of the 7th Street gang. The Honestos wanted Rodolfo to talk to Ortuno’s mother and put pressure on him to talk to Ortuno’s mother and arrange a meeting. Rodolfo approached Ortuno’s mother and told her that defendant’s stepfather was pressuring him to get the charges dropped against defendant. Rodolfo told Ortuno’s mother that defendant’s mother wanted her telephone number.
A short time later, in February 2008, four “cholos” tried to break into the Ortuno residence. A week later, Rodolfo was again sent to Ortuno’s residence by defendant’s family. Rodolfo referred to the earlier break-in and warned Ortuno’s mother that she had one proof of what they were capable of and the next time a bomb could be thrown at the house. In July 2008, Rodolfo himself was threatened with a gun about coming to court while at the Honesto house after mutual friends had asked him to go over there. Barbara Honesto told Rodolfo his name had better not be on any paperwork.
Defendant was charged with one count of attempted murder (§§ 664/187, subd. (a)), along with special allegations that the attempt was deliberate and premeditated, involved the use of a firearm (§ 12022.5, subds. (a), (d)), as well as the discharge of a firearm (§ 12022.53, subds. (b), (c), (d)), and that the crime was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Following a trial by jury, defendant was convicted of the attempted murder, and the jury made true findings on all the special allegations. At sentencing, the court committed defendant to state prison for a term of seven years to life for the attempted murder, plus a 10-year enhancement for the gang allegation, plus 25 years to life for the gun discharge enhancement, for a total sentence of 42 years to life. He was awarded presentence custody credits of 649 days for time actually spent in local custody, plus 28 days conduct credit, for a total of 677 days credit for time served. Defendant timely appealed.
We use the shorthand expression “for the benefit of a criminal street gang” to refer to crimes which are alleged to have been committed “‘for the benefit of, at the direction of, or in association with any criminal conduct by gang members, ’” as provided in section 186.22, subdivision (b). (See People v. Sok (2010) 181 Cal.App.4th 88, 92, fn. 3.)
DISCUSSION
On appeal, defendant argues that the trial court (1) abused its discretion by admitting unnecessarily prejudicial gang expert testimony; (2) erred by admitting improper opinion testimony; (3) imposed an unauthorized sentence for the attempted murder count; and (4) erroneously denied him conduct credit for presentence time spent in juvenile hall prior to his transfer to jail after his 18th birthday. The People agrees that the two sentencing issues have merit. However, respondent points to defendant’s acknowledged failure to object to the testimony of the gang expert, asserting that those issues were forfeited. We agree.
1. Admission of Gang Expert Opinion Testimony
Defendant argues that the prosecution’s introduction of certain evidence was cumulative and unduly prejudicial. He argues that testimony that the 7th Street subset or clique of West Side Verdugo was the subject of a civil gang injunction, as well as detailed accounts of crimes committed by 7th Street gang members, was cumulative evidence that should have been excluded under Evidence Code section 352. Specifically, he challenges the inclusion of evidence that one gang member had committed first degree murder with a firearm enhancement and that defendant’s stepfather twice sold firearms to a federal informant posing as a gang member, where there was sufficient evidence to establish a pattern of gang activity already. In a separate argument, defendant argues that the gang expert’s opinion that defendant’s motivation for the crime was to show his willingness to commit vicious, heinous crimes, such as shooting, when the gang was disrespected in their neighborhood.
Defendant acknowledges that no objection was made to the challenged evidence, but argues that the issues were preserved because the prosecution’s trial brief described the evidence, the court was aware of the evidence when it ruled on the bifurcation issue, and defendant made a bifurcation motion grounded on the gang evidence’s potential for prejudice. We disagree.
Regarding the Evidence Code section 352 argument, it has been consistently held that a defendant’s failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. (People v. Partida (2005) 37 Cal.4th 428, 433-434, quoting People v. Seijas (2005) 36 Cal.4th 291, 302.) Evidence Code section 353 does not require any particular form of objection, but the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which the exclusion is sought. (Partida, at pp. 434-435.)
Here, defendant refers to the fact he made a motion to bifurcate the gang enhancement, but that request was made only after the prosecution presented its in limine motion to admit the gang evidence. In arguing the issue in limine, the prosecutor noted that that the defense had no objections to any of the evidence the prosecution proposed to introduce. Defense counsel agreed, stating he did not have any problems so long as there is a foundation for the evidence. The prosecutor then noted that the defense could make his objection at the time the evidence was proffered and the court ruled it would all come in subject to any objections that might be made.
The court then inquired if defendant was making a motion to bifurcate the gang evidence. In response to the court’s inquiry, defense counsel stated “Well, your Honor, actually this whole case revolves around a gang location, one of the more serious ones. What my feeling is, is if that’s part of the trial, it’s going to unnecessarily prejudice my client. I would like to bifurcate that issue from the-from the actual attempted murder.” The court denied the request for bifurcation because the gang evidence was related to the intent or motive for the crime. During the presentation of the gang expert’s testimony, defendant did not object to the admission of any gang evidence, on foundational or any other basis.
Defendant does not argue that the trial court improperly denied his request to bifurcate the gang evidence. Defendant also does not argue that gang evidence was inadmissible in this case. Instead, he argues that there was sufficient evidence to show a pattern of criminal activity, and that evidence that a 7th Street member had committed first degree murder with a firearm enhancement, and that defendant’s stepfather had sold firearms to a federal informant, was cumulative evidence that should have been excluded under Evidence Code section 352. Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Defendant also argued that the expert’s opinion as to defendant’s motivation to commit the crime was improperly admitted because it is improper for an expert to render an opinion on defendant’s subjective knowledge and intent, citing People v. Killebrew (2002) 103 Cal.App.4th 644, 647. No objection was made to the challenged opinion testimony on this ground so it is forfeited. Defendant argues that we should reach the issue because the failure to object violated his right to effective assistance of counsel. We recognize we may review the substance of a defendant’s contention to forestall a claim of ineffective assistance of counsel. (People v. Scaffidi (1992) 11 Cal.App.4th 145, 151.) However, in this case no such argument would have merit since the opinion testimony did not relate to defendant’s subjective knowledge or intent, and because there was ample other evidence of the gang related motive for the crime without any expert testimony.
To the extent defendant asserts a different theory for exclusion of gang evidence than he asserted at trial, the assertions are not cognizable. (People v. Partida, supra, 37 Cal.4th at p. 438; see also People v. Monterroso (2004) 34 Cal.4th 743, 773.)
2. The Sentence and Gang Enhancement on Count 1 Were Unauthorized.
As to the attempted murder count, the court imposed a base term of seven years to life, and added a 10-year enhancement for the gang allegation. Defendant argues this sentence is unauthorized, and the People agree it was error. We agree.
Section 664, subdivision (a), provides that the punishment for attempted willful, deliberate, and premeditated murder is life with possibility of parole. The statute does not provide for a sentence range, such as 15 years to life for second degree murder, or 25 years to life for first degree murder. The sentence is a straight indeterminate sentence with a maximum term of life.
Section 3046, subdivision (a)(1), does provide that no prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of (1) a minimum of seven calendar years, or (2) a term established pursuant to any other provision of law that establishes a minimum period of confinement under a life sentence before eligibility for parole. However, this does not necessarily establish a minimum term of seven years.
Life inmates’ actual confinement periods within the statutory range are decided by the Board of Parole Hearings. (§ 3041, subd. (a).) No cases on point have been found to hold that the “minimum term” provided by section 3046 becomes a part of the sentence range for attempted murder. Some decisions have held that the seven-year period constitutes a “minimum term” under the Strikes law, which is subject to being doubled. (§ 667, subd. (e)(1); People v. Jefferson (1999) 21 Cal.4th 86, 96.) However, section 664, subdivision (a), does not establish a sentence “floor.” The minimum term served by a life inmate will only be a minimum of seven years, pursuant to section 3046, if no greater term applies. (§ 3046, subd. (a)(2).) In this case, the gang enhancement finding establishes a greater minimum term, so the sentence of seven years to life was unauthorized.
Where the attempted murder is committed for the benefit of a street gang, section 186.22, subdivision (b)(5), establishes an alternative minimum term, or sentence floor, of 15 years, which a defendant must serve before being released on parole. Because defendant was convicted of a felony punishable by imprisonment in the state prison for life, he is statutorily required to serve a minimum of 15 calendar years before he may be paroled. (§ 186.22, subd. (b)(5).) Subdivision (b)(1)(C) of section 186.22, requiring imposition of an enhancement of 10 years to any sentence, applies to persons convicted of violent felonies for the benefit of a street gang whose crimes are not punishable by imprisonment for life. (People v. Sok, supra, 181 Cal.App.4th at p. 94; see also People v. Rodriguez (2009) 47 Cal.4th 501, 505.) It does not apply to persons convicted of felonies punishable by life. Therefore, the 10-year enhancement was unauthorized.
The sentence must therefore be modified: the sentence for the substantive crime of attempted premeditated murder in count 1 is life with possibility of parole, with no minimum term expressed. Instead of a 10-year enhancement for the gang allegation, defendant may not be considered eligible for release on parole by the Board of Parole Hearings until he has served a minimum of 15 calendar years in prison. (§ 186.22, subd. (b)(5).) The 10-year enhancement imposed pursuant to section 186.22, subdivision (b)(1)(C) is hereby stricken.
3. Defendant Is Entitled to Additional Presentence Conduct Credit for Time Spent in Juvenile Hall upon His Commitment to State Prison.
Defendant argues he was improperly denied conduct credits for presentence time served in juvenile hall. Defendant served 457 days in juvenile hall, being housed there until his 18th birthday, when he was transferred to the adult facility. He was awarded 457 day-for-day credit for the actual time spent in juvenile hall, plus 192 days credit for time actually spent in local adult custody. He was awarded 15 percent conduct credits (§ 2933.1) against the 192 days spent in jail, or 28 days, for total credits against his sentence of 677 days. Defendant argues he was entitled to additional conduct credits for the time spent in juvenile hall. The People agree, and so do we.
A juvenile committed to the Department of Juvenile Facilities (formerly the California Youth Authority) is not entitled to conduct credit for pre-commitment time spent in juvenile hall because a minor committed for treatment as a juvenile is not similarly situated to an adult. (In re Ricky H. (1981) 30 Cal.3d 176, 186-190; see also In re Edward S. (1982) 133 Cal.App.3d 154, 158.) However, a minor who is tried as an adult and sentenced to state prison for his offense is similarly situated to an adult and is entitled to conduct credits for presentence time spent detained as a juvenile. (People v. Saldivar (1984) 154 Cal.App.3d 111, 114-115.) Equal protection principles require that juveniles be given custody credits against their prison sentences for time spent at juvenile hall. (People v. Twine (1982) 135 Cal.App.3d 59, 62-63.)
Having been detained for 457 days in the juvenile facility, defendant was entitled to an additional 68 days of conduct credits (15 percent of 457, pursuant to § 2933.1), for total conduct credits in the amount of 96 days. The superior court is directed to amend the judgment to reflect the additional credits.
DISPOSITION
The sentence is modified as follows: the term specified for count 1 is modified to provide for a term of life with possibility of parole. For the gang enhancement, the 10-year term is stricken; instead, the judgment shall provide that defendant shall not be paroled until a minimum of 15 calendar years has been served. Additionally, defendant is entitled to an additional 68 days of conduct credits for a total of 96 days. As so modified, the judgment is affirmed. A copy of the amended abstract of judgment is to be sent to the Department of Corrections and Rehabilitation.
We concur: Hollenhorst, J., McKinster, J.