Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. NA076042 of Los Angeles County, James D. Otto, Judge.
Robert Derham, 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, Mary Sanchez and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant George Moreno was convicted by jury of carjacking (count 1) in violation of Penal Code section 215, subdivision (a). The jury further found defendant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1), and 12022.53, subdivisions (b). In counts 4, 5, and 6, the jury found defendant guilty of willful, deliberate, and premeditated attempted murder in violation of sections 664 and 187, subdivision (a). Firearm use allegations under section 12022.53, subdivision (d), were found true as to counts 4 and 5; a firearm use was found true in count 6 under section 12022.53, subdivision (c). The jury found that defendant committed each offense to benefit and promote a criminal street gang within the meaning of section 186.22, subdivision (b)(1). A mistrial was declared as to attempted murder charges in counts 2 and 3, after the jury reported it was hopelessly deadlocked.
All statutory references are to the Penal Code, unless otherwise stated.
Because the charges in counts 2 and 3 were dismissed, the facts supporting those charges, and any special allegations pertaining to those charges, are omitted from this opinion.
Defendant was sentenced to 25 years to life in count 1, 40 years to life in counts 4 and 5, and 21 years to life in count 6. The sentences were ordered to run consecutive to each other.
In this timely appeal, defendant argues there is insufficient evidence to support the attempted murder conviction in count 6 and the gang findings in each count. The Attorney General argues the abstract of judgment fails to accurately reflect the security fees imposed by the trial court. We order the abstract corrected to conform to the oral pronouncement of judgment, and in all other respects affirm.
FACTS
Count 1-Carjacking of Jonathan Aubert
Three people were in Jonathan Aubert’s white PT Cruiser in Carson on July 15, 2007, at around 2:30-3:00 a.m.-his friend Andre, who was driving, his cousin Eric Overton in the right rear passenger seat, and Aubert in the front passenger seat. Defendant approached the car, pointed a chrome or silver gun at Overton through the open window of the rear passenger seat, and asked Overton where he was from. Overton said, “I don’t bang.” Defendant then asked Andre where he was from. Andre said he was from nowhere. Defendant pointed a gun at the side of Andre’s head and ordered everyone out of the car. All three occupants complied out of fear of being shot. Defendant and another man entered the PT Cruiser and drove away. Overton recalled that defendant, whom he identified in court and had previously identified in a photographic lineup, had a tattoo on the top of his head.
Aubert and Overton testified that they are African American.
Counts 4-6-Attempted Murder of Mauricio Pena, Erick Rodriguez, and Ursula Rosales
Mauricio Pena, Erick Rodriguez, and Ursula Rosales were at 3515 Adriatic Avenue in Long Beach on July 27, 2007, around 3:00 a.m. Pena told Rodriguez and Rosales to come into the house. The white PT Cruiser carjacked from Aubert drove up on the wrong side of the street. Someone in the vehicle asked, “Where are you from?” Rosales spoke up and said “They’re not from nowhere, ” hoping her statement would ward off any trouble. Her words did not seem to matter, as she felt the guys were the target because “they were guys, even though I was the one that spoke up. I have no idea but-I don’t know why. I felt really lucky.” Rosales heard gunshots and ran. At the time of the gunshots, she was three to four feet from Pena and Rodriguez-“they were right next to me.” She was not injured, but heard them scream about being shot.
Before the shots, Pena heard defendant say something about “Eastside Longo, ” or words to that effect. Pena and Rodriguez are not gang members. Pena was shot in the stomach by defendant, who was the driver. Pena believed defendant used a nine-millimeter or a.45-caliber handgun. Pena heard a couple of more gunshots, one of which struck him in the chest. He believed defendant then shot at Rodriguez. Pena went down and crawled by a car. He also saw Rodriguez go down, after suffering a through and through gunshot wound to the leg. Rosales had been right behind Rodriguez, standing by left shoulder. According to Pena, Rodriguez was closest to the shooter; Rosales was behind his left shoulder; and Pena was behind them by a couple of feet. Pena spent almost two weeks in the hospital. He identified defendant’s photograph while he was in the hospital. Rodriguez identified defendant’s photograph as that of the driver who fired the shots and testified at trial that defendant looks like the shooter although he was not “too sure.”
Officer David Geer recovered three Winchester brand.45-caliber expended shell casings in front of 3515 Adriatic Avenue at 3:30 a.m.
Arrest and Recovery of the PT Cruiser, Firearm, Ammunition, and Fingerprints
Deputy Jason Bowley was on patrol on July 27, 2007, at 5:15 p.m. when he saw a white PT Cruiser driven by defendant on the wrong side of the street. He followed defendant for three to four minutes with the patrol car’s lights and siren activated, observing multiple Vehicle Code and safety violations, including failure to stop at red lights, turning into oncoming traffic, driving on the wrong side of the road at unsafe speeds, and driving through residential neighborhoods at speeds up to 50 miles per hour. During the pursuit, Deputy Bowley broadcast his location and the vehicle description. Out of concern for safety, the deputy ceased his pursuit. He was later directed to the PT Cruiser, which had crashed on the 710 freeway near the Del Amo exit. Defendant was detained within 100 yards of the crash.
Sergeant Chris Moat also responded to the scene of the crash. He recovered a.45-caliber silver semiautomatic handgun 10 feet from the PT Cruiser. Inside the vehicle, he recovered one expended.45-caliber casing on the front driver’s side floorboard and 33 live rounds in a box in the back seat. The three cartridge casings recovered at the scene of the shooting on Adriatic Avenue on July 27, 2007, were fired from the recovered firearm, as was the one casing recovered from the PT Cruiser.
Twelve fingerprint cards were lifted from the PT Cruiser and submitted for comparison. Defendant’s fingerprint was on the driver’s door and on the rearview mirror. The other ten prints did not match defendant, but came back to four other individuals.
Gang Expert Testimony
Detective Eric Arias of the Los Angeles County Sheriff’s Department, a sworn peace officer for 13-14 years, was assigned to the gang unit referred to as Operation Safe Streets Bureau in Compton. He received 8-16 hours of general gang training at the academy. He worked in a custody facility for two years after graduating from the academy, where he interacted, talked, and interviewed in excess of 500 gang members. Gang members would openly speak about their life in gangs, display their hand signs and tattoos, and explain the crimes they committed for the benefit of the gang. After leaving the custody assignment, Detective Arias worked patrol for four years, where he came in contact with hundreds of gang members, and again interviewed them regarding their gang involvement.
In 2002, Detective Arias transferred to the gang unit at the Carson Station, where he was currently assigned. His gang assignment at the Carson Station, where he only investigated gang crimes, was with a goal of investigating and acquiring intelligence on gang members, building a rapport with them, finding out what was going on in their neighborhoods, and monitoring crime trends. He attended conferences put on by the California Gang Investigators Association and attended the “No Gangs” conference in Las Vegas conducted by the California Homicide Investigators Association. He has authored in excess of 60 search warrants relating to gang crimes and assisted in service of a few hundred search warrants of gang members’ residences. Detective Arias testified as a gang expert in Los Angeles and San Bernardino Counties.
Detective Arias defined a gang, and he explained how one joins and the importance of respect in the gang culture. Detective Arias became familiar with Dominguez 13 in 2002, which is one of the primary and most active gangs in the Carson area. It is one of the gangs assigned to him, so all crimes within Dominguez’s area or involving the Dominguez gang members would typically have been handled by him when he was at the Carson Station. He has met several of the gang members, investigated their crimes, and interviewed and arrested them.
In July 2007, there were 125-150 documented Dominguez gang members, with probably fewer than 100 active members. The gang occupies the southeast portion of Carson’s jurisdiction that borders Long Beach. When asked about the primary activities of the gang, Detective Arias answered, “Since I’ve been familiar with that gang, they’ve engaged in activity from vehicle theft, robberies, sales of narcotics, burglary, assault with a deadly weapon, weapons possession, and murder.”
Detective Arias has known defendant for seven years. He has had at least one dozen contacts with defendant and has arrested or assisted in his arrest numerous times. Each time, defendant has admitted being a gang member, and he has admitted it to other officers. Defendant had tattoos, including the letter D on the top of his head, “tiny locos” (a clique of Dominguez 13) on his upper lip, the letters “DV” behind his neck, and others on his chest and back.
The detective testified to the commission of two predicate crimes committed by Dominguez 13 gang members. Rafael Flores was convicted of robbery in 2007, and Emmanuel Shawn Gallegos was convicted of robbery in 2004.
Based on a hypothetical question regarding the carjacking of the PT Cruiser on July 15, 2007, the shooting on Adriatic Avenue on July 27, 2007, and the recovery of the vehicle and shell casings, Detective Arias expressed the opinion that the offenses were committed for the benefit and in furtherance of Dominguez 13.
The hypothetical also encompassed the attempted murder charges in counts 2 and 3, which were dismissed when the jury failed to reach a verdict. Discussion of those offenses is omitted from the summary of the expert’s testimony.
DISCUSSION
Sufficiency of the Evidence of Attempted Murder of Rosales
Defendant argues the evidence is insufficient to support the attempted murder conviction in count 6 because there was no evidence defendant intended to kill Rosales. Defendant relies on Rosales’s testimony that she was not the intended target, and Pena’s testimony that he was shot in the stomach, then the chest, and another shot hit Rodriguez. Under the applicable substantial evidence standard of review, we disagree.
A. Standard of Review
When considering an insufficient evidence claim, we review the record “in the light most favorable to the judgment below to determine whether it discloses substantial evidence” supporting each element of the crime. (People v. Johnson (1980) 26 Cal.3d 557, 562.) “Substantial evidence” 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.” (People v. Stanley (1995) 10 Cal.4th 764, 792; Jackson v. Virginia (1979) 443 U.S. 307, 319 [“the relevant question is 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.”].) Our role is not to “resolve evidentiary conflicts, ” but to “‘“view the evidence in a light most favorable to”’ the People, ‘“and presume in support of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Majors (2004) 33 Cal.4th 321, 331.)
B. Attempted Murder
“‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.)” (People v. Stone (2009) 46 Cal.4th 131, 136 (Stone).) “‘Someone who in truth does not intend to kill a person is not guilty of that person’s attempted murder even if the crime would have been murder... if the person were killed. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others.’” (Id. at pp. 136-137, citing People v. Bland (2002) 28 Cal.4th 313, 328.)
However, when a defendant intends to kill a particular person, that fact does not preclude conviction of attempted murder of another person who is in what our Supreme Court has described as the “kill zone.” (Stone, supra, 46 Cal.4th at p. 137.) The kill zone theory of concurrent intent does not require special jury instructions. Instead, “it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.” (People v. Bland, supra, 28 Cal.4th at p. 331, fn. 6.)
Our Supreme Court has also held that “a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person.” (Stone, supra, 46 Cal.4th at p. 140.)
C. Analysis
Substantial evidence supports any of three factual scenarios regarding defendant’s intent during the July 27 shooting on Adriatic Avenue. Two of those scenarios are sufficient to support the conviction in count 6.
One possibility, as urged by defendant and based on Rosales’s testimony, is that defendant intended to kill Rodriguez and Pena, but that he had no intent to kill Rosales. If the jury found this to reflect defendant’s intent, then defendant was not guilty of the attempted murder of Rosales. (Stone, supra, 46 Cal.4th at pp. 136-137.)
A second possible finding supported by substantial evidence is that defendant intended to kill Rodriguez, Pena, and Rosales. The evidence reveals that the three victims were standing close to each other at the time of the shooting. There is nothing in the evidence to exclude the possibility defendant intended to kill all three. To the contrary, there is substantial evidence that defendant fired four shots, not merely the three that struck the two male victims, in that three casings were recovered at the scene but a fourth was in the PT Cruiser at the time of defendant’s capture.
A third possibility is that defendant had no specific target in mind, but merely fired indiscriminately with the intent to kill. Our Supreme Court has held that a shooter may be found guilty of attempted murder under this fact pattern. (Stone, supra, 46 Cal.4th at p. 140.) There is substantial evidence to support a reasonable jury finding that defendant fired indiscriminately in the direction of the three victims once he did not receive a satisfactory answer to his question regarding their gang affiliation, intending to kill but not focusing on any particular victim.
We reject defendant’s argument that Rosales’s speculative testimony as to defendant’s intent, coupled with the fact she was not shot but her two male companions were, demonstrates, as a matter of law, that defendant did not intend to kill Rosales. A defendant’s intent is not determined by who was struck by the gunshots. The issue here is whether there is substantial evidence to support the conviction in count 6 on any recognized theory of culpability. Such evidence exists, and it is not our role as a reviewing court to reweigh the evidence and the reasonable inferences to be drawn.
Sufficiency of the Evidence of the Gang Enhancement
Defendant’s second and final argument is that there is no evidence to support Detective Arias’s testimony that the primary activities of the Dominguez 13 gang included offenses set forth in section 186.22, subdivision (j). Defendant argues that Detective Arias merely “offered a sweeping conclusion about the activities of the gang without informing the jury of the facts upon which he based his conclusion.” Due to this evidentiary deficiency, defendant contends there is insufficient evidence to support the gang enhancement. As there is substantial evidence to support the expert’s opinion as to the gang’s primary activities, we reject the contention.
A. The Requirement of Proof of a Gang’s Primary Activities
The gang enhancement of section 186.22, subdivision (b), required the prosecution to prove that defendant committed the charged offenses for the benefit of a criminal street gang. Section 186.22, subdivision (f), defines a “criminal street gang” for purposes of these provisions as “‘any ongoing organization, association, or group of three or more persons... having as one of its primary activities the commission of one or more [enumerated offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “The phrase ‘primary activities, ’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.... [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 324.) Also sufficient might be expert testimony that the gang was primarily engaged in certain offenses. (Ibid.)
B. Analysis
Detective Arias was specifically asked the primary activities of Dominguez 13. He directly answered that “Since I’ve been familiar with that gang, they’ve engaged in activity from vehicle theft, robbery, sales of narcotics, burglary, assault with a deadly weapon, weapon possessions to murder.” Defendant nonetheless argues the detective’s testimony lacked “information establishing reliability, ” relying on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.).
In Alexander L., as here, the issue was whether the prosecution presented substantial evidence of the primary activities of a gang. The gang expert expressed the opinion the gang was an active street gang. When asked about the gang’s primary activities, the expert in Alexander L. testified, “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Alexander L., supra, 149 Cal.App.4th at p. 611.) The appellate court found fault in the expert’s testimony because “[n]o specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information. He did not directly testify that criminal activities constituted [the gang’s] primary activities.” (Id. at pp. 611-612.) The court further held the expert’s “testimony lacked an adequate foundation” and was not shown to be reliable because “[i]t is impossible to tell whether his claimed knowledge of the gang's activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay.” (Id. at p. 612.)
Unlike the situation in Alexander L., Detective Arias did identify the primary activities of Dominguez 13, and the foundation for his testimony is abundantly set forth in the record. He had personal knowledge and experience with the gang since 2002. It was one of the most active gangs in Carson, his geographical assignment, “and they are one of the gangs assigned to me, so all crimes with Dominguez area or involving a Dominguez gang member, I typically would have handled when I was assigned at Carson.” Detective Arias had met the Dominguez 13 members, investigated their crimes, conducted interviews, and made arrests. He was familiar with the number of documented and active members, and knew the territory claimed by the gang.
Given Detective Arias’ personal knowledge over seven years of Dominguez 13, its members, the crimes they committed, and the gang’s claimed territory, there was an ample foundation for his testimony regarding the gang’s primary activities. Alexander L. does not dictate a contrary result.
Correction of the Abstract of Judgment
The Attorney General points out that the trial court ordered defendant to pay a total of $80 in security fees pursuant to section 1465.8, but the abstract of judgment reflects only a $20 security fee. We order the abstract corrected to conform to the judgment.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting imposition of $80 in security fees pursuant to Penal Code section 1465.8. In all other respects, the judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.