Opinion
No. C060871.
2011-11-1
The PEOPLE, Plaintiff and Respondent,v.Austen Robert Manuel NUNES et al., Defendants and Appellants.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Austen Robert Manuel Nunes.Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant Pauliton Recardo Nunes.Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Bonge.Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Austen Robert Manuel Nunes.Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant Pauliton Recardo Nunes.Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Bonge.Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In April 2007, defendants Austen Nunes, Pauliton Nunes, and Daniel Bonge
went with several others to the train tracks in West Sacramento to drink some stolen beer. When an Amtrak train came by, slowing as it approached Sacramento, one of the group stood on the tracks, and Austen threw a rock at the train. The train stopped and the angry engineer got off the train. A vicious assault on the engineer followed.
Because they have the same last name, we refer to Austen and Pauliton Nunes by their first names. We will refer to all three defendants collectively as defendants.
Further statutory references are to the Penal Code.
Defendants (and two others not before us) were prosecuted for multiple felonies, including attempted murder and assault with a deadly weapon on a public transit employee with great bodily injury and criminal street gang enhancements. The jury found defendants guilty of most of the charges and found most of the great bodily injury enhancement allegations true, but found the gang enhancement allegations were not true. The jury did, however, find defendants guilty of the offense of criminal street gang activity (sometimes called street terrorism).
On appeal, defendants contend: (1) it was error to qualify Police Officer Kenneth Fellows as a gang expert; (2) Officer Fellows's testimony improperly invaded the
province of the jury; (3) there was insufficient evidence to support their convictions of criminal street gang activity; and (4) in any event the trial court should have stayed the sentence for criminal street gang activity pursuant to Penal Code
section 654. Austen and Pauliton further contend the trial court erred in failing to instruct the jury that the testimony of Bonge's girlfriend, C. S., had to be corroborated because she was an accomplice. In addition, Austen contends there was insufficient evidence he personally inflicted great bodily injury. The People concede defendants' three remaining contentions: (1) their convictions for assault with a deadly weapon (counts 2 through 4) should be reversed because those offenses are lesser included offenses of assault with a deadly weapon on a public transit employee, of which defendants were also convicted (counts 5 through 7); (2) the great bodily injury enhancements to their convictions for battery with serious bodily injury (count 8) must be stricken; and (3) the amount of their court security fees must be corrected.
Further unspecified section references are to the Penal Code.
I do not agree, however, that applying section 654 here renders the gang charge a nullity. First, had the jury been permitted to consider the stealing of the beer as felonious criminal conduct, or had the People charged the case differently, the application of section 654 would not be at issue. Further, even where section 654 bars a separate sentence, the conviction is not inconsequential to a defendant should he reoffend. In a subsequent prosecution, the gang conviction could be charged as a serious felony prior within the meaning of section 1192.7, and could result in an additional five-year sentence. There are other ramifications of conviction as well. The conviction itself is not without consequence.
We agree with those of defendants' claims the People have conceded and reverse defendants' convictions for assault with a deadly weapon (counts 2, 3, and 4) and the great bodily injury enhancements on their battery convictions (count 8). We also correct the amount of the court security fees. Otherwise, however, we affirm the judgment. As we will explain, the gang expert was properly qualified and his testimony did not exceed the permissible scope for a gang expert. There was substantial evidence of criminal street gang activity, and there was no evidence C.S. was an accomplice. Moreover, her testimony provided substantial evidence that Austen personally inflicted great bodily injury.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Crimes
On April 16, 2007, several people, including defendants, was hanging out and drinking at the Pickwick Motel in West Sacramento. Among the group was Bonge's girlfriend, C.S., and her brother Ernie, a self-proclaimed Broderick Boys gang member. The group took multiple photographs at the motel that were later found on Pauliton's cell phone, which was discovered at the scene of the attack on the train engineer. The photographs showed defendants and some others making gang signs outside the motel. In particular, they were forming the letter “N” and the number “14” or “XIV,” which symbolize the Norteño gang (N being the 14th letter of the alphabet), and the letter “B,” which symbolizes the Broderick Boys, a subset of the Norteño gang in West Sacramento.
After spending a while at the motel, a smaller group that included C.S. and defendants went swimming in the Sacramento River. After that, Austen suggested a beer run, and the group stole beer from a market. The group then went to the train tracks to drink the stolen beer.
At some point, after one of the group (Javier Ramos) went up on the tracks, an Amtrak passenger train approached on its way to Sacramento. The crew had received information that there were trespassers on the tracks, and as the train slowly approached the I Street Bridge the engineer, Jacob Keating, saw a person on the tracks waving his hands. As Keating stopped the train to avoid hitting the person
(Ramos), Austen threw a rock at the train. Keating flinched and cursed as the rock struck the window frame near his head.
Angry, Keating got off the train and yelled at the group to get off the tracks. The group started throwing rocks at him and he threw a rock back. Keating then saw Bonge approaching him with a big rock in his hand. Keating asked Bonge if Bonge was going to hit him, but then, in self-defense, Keating punched Bonge first. After Keating hit Bonge a second time, Bonge fell to the ground and pulled Keating with him, where Keating continued to punch Bonge. Pauliton intervened, kicking Keating in the ribs. Keating then began fighting with Pauliton, and a third person came up and hit Keating in the face a couple of times.
Meanwhile, the train's conductor, William Ray, Jr., had followed Keating off the train, grabbing a fire extinguisher before he stepped off because he heard yelling. After the group began throwing rocks at him, Ray discharged the fire extinguisher, then threw rocks back at them. At some point he set the fire extinguisher down and was rushed by several individuals. Eventually Ray managed to get back on the train amidst a barrage of rocks and bottles.
Richard D'Alessandro was a student engineer on the train. He also got off of the train and found it hard to see; things happened fast and it was “almost like a dream.” Rocks and bottles were being thrown. D'Alessandro was not hit, but he reeked of beer. He returned to the train and called dispatch, requesting police assistance. A service attendant on the train had also called 911.
In the midst of the attack, Keating managed to get back on the train. When he saw that D'Alessandro was still outside and “in a bad situation,” he got back off the train. He eventually ran into “the trespassers on the tracks” and ended up fighting with five of them. Someone tackled him from behind, and then he was struck in the back of the head with a Grey Goose vodka bottle.
Austen also struck Keating in the back of the head with the fire extinguisher. Keating begged his attackers not to kill him, but they continued attacking him. Eventually Keating was bleeding so profusely that everyone ran.
Austen had stolen the vodka earlier.
As Keating tried to get back on the train, Austen and another person returned and punched him, and Austen demanded his wallet and cell phone. When Keating told them, “ ‘It is on the train,’ ” they hit him again, but then ran away when they determined the police were coming.
When Keating finally made it back onto the train, D'Alessandro drove the train into Sacramento. There was blood, broken glass, stones, and fire extinguisher dust everywhere. D'Alessandro described the scene as “pretty horrific.”
Keating suffered serious injuries from the assault. He spent two and one-half days in the hospital and required staples to close the cuts on his head. In addition, he had numerous cuts and bruises and had to use a cane for two or three months. About a week after the attack, Keating returned to the hospital with severe postconcussive symptoms.
B
The Charges
The indictment charged defendants and two others (including Ramos) with 12 felonies and two misdemeanors: specifically, one count of attempted murder (count 1); three counts of assault with a deadly weapon
(the fire extinguisher, the vodka bottle, and the stones) (counts 2, 3, and 4); three counts of assault with a deadly weapon on a public transit employee (the fire extinguisher, the vodka bottle, and the stones) (counts 5, 6, and 7); one count of battery with serious bodily injury (count 8); one count of attempted second degree robbery (count 9); one count of throwing a missile at a vehicle of a common carrier (count 10); one count of vandalism (count 11); one count of criminal street gang activity (count 12); and two misdemeanor counts of assault on transportation personnel (counts 13 and 14). All of the felony charges included great bodily injury enhancement allegations, and all of the felony charges except the criminal street gang activity charge (§ 186.22, subd. (a)) included enhancement allegations for criminal street gang activity under section 186.22, subdivision (b).
C
The Gang Expert
Before trial, Bonge moved to limit the testimony of any gang expert the People intended to call. The trial court denied that motion. Subsequently, during trial, Austen and Pauliton moved to exclude any gang expert testimony on the ground there was insufficient evidence the crimes were gang related. Bonge joined that motion.
The court held a hearing on the motion to exclude gang expert testimony. Pauliton's attorney complained about late discovery and the late notice that Officer Kenneth Fellows would be substituted as the People's gang expert in place of the officer who had testified before the grand jury. The trial court ruled the defense could impeach Officer Fellows with the grand jury testimony of the other officer and limited Officer Fellows to giving opinions based on the reports defendants currently had. The court also limited Officer Fellows to the theory of gang involvement advanced before the grand jury.
Subsequently, Officer Fellows testified he had been a West Sacramento police officer for approximately nine years. He was currently assigned to the community response team, which dealt with gang, narcotic, and prostitution crimes and other quality of life issues. Before this assignment, he had been on patrol for approximately seven years.
Officer Fellows had 250 hours of formal training on gangs. His last training was a 16–hour FBI course a week before he testified. In addition to formal training, he had received training from field training officers and the gang investigator who had testified before the grand jury. Of his 250 hours of formal training, approximately 100 hours were devoted to Hispanic gangs, including the Norteños.
Officer Fellows had attended a debriefing of a lieutenant of the Nuestra Familia, a prison gang. The Norteño gang is a division of the Nuestra Familia, and the Broderick Boys is a division (or subset) of the Norteños. Officer Fellows was a member of the California Gang Task Force, the Northern California Gang Investigators Association, and the California Gang Investigators Association. He had experienced no fewer than 700 gang contacts, mostly with Norteños, including the Broderick Boys, while working with gang members in West Sacramento. In his conversations with gang members, they had discussed the lifestyle, philosophy, membership, dress, hairstyles, signs and tattoos, graffiti, rivalries and alliances, and turf of the gang. They also discussed the gang concept of respect.
Officer Fellows had investigated no fewer than 20 gang crimes and had assisted in other investigations. He reviewed reports of gang-related crimes and consulted the
database of gang-related crime members and suspects. He also read literature on gangs. Other officers asked him questions about gangs. Officer Fellows had previously been qualified as a gang expert in three preliminary hearings.
Defendants objected to Officer Fellows testifying as a gang expert, but the trial court overruled their objections.
Officer Fellows testified there are over 300 validated gang members in West Sacramento; 167 of them are members of the Broderick Boys. The Broderick Boys identify with the number 14 and the color red. They also identify themselves with the letter B.
There are several ways to become a member of the Broderick Boys. One can be “jumped in” through a fight. Another method is generational, by which members are accepted into the gang because there are already gang members in their family. Others join as walk-ins by hanging around gang members. Although Norteños are primarily Hispanic, in West Sacramento, whites and blacks are also accepted as members of the Broderick Boys.
Officer Fellows explained that gang members are expected to put in work or “earn [their] bones” to show they are “down for the gang.” They do this by committing crimes or backing up fellow gang members who are confronted by rivals. They then earn loyalty or status within the gang and earn the right to a gang tattoo, such as four dots.
Turf is very important and the gang protects it. The turf of the Broderick Boys is north of Highway 50 to the Sacramento River and east of Harbor Boulevard, within the old neighborhoods of Broderick and Bryte. The railroad tracks where the attack on the engineer occurred were within the turf claimed by the Broderick Boys. There was a substantial amount of Broderick Boys graffiti in the area.
Officer Fellows testified that the primary activities of the Broderick Boys are assaults, theft, vehicle theft, burglary, narcotics sales, weapons violations, and homicides. The assaults often involve weapons and are violent, with multiple members attacking a single victim. Officer Fellows identified different levels of participation in a gang: “hanging around associates,” who do not commit crimes; active gang members, who commit crimes and recruit; and old gangsters or “OG's,” who are older and out of prison. “OG's” are less likely to be actively involved; they use younger members to commit crimes.
Officer Fellows gave his opinion that Bonge was an active participant in the Broderick Boys. He based his opinion in part on the various photographs showing Bonge and others making the signs “N,” “XIV,” and “14.” Officer Fellows noted the pictures had been taken in public and there would be adverse consequences for displaying gang signs if one was not a member.
Officer Fellows also based his opinion on evidence that Bonge had a prior police contact in which he was issued a STEP Act
notice for hanging out with gang members. Specifically, Bonge was caught shoplifting at a Walgreens drug store in 2006 with Pauliton and Rolando Venegas, a validated Norteño and Broderick Boy.
The STEP Act is the Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.).
Officer Fellows also relied on the theft of the beer on the day of the attack on the train engineer to support his opinion that Bonge was an active participant in the
Broderick Boys gang. Fellows noted that Bonge associated with others to conspire to steal the beer and to engage in the gang activity of drinking beer and celebrating.
Officer Fellows also gave his opinion that Austen was an active participant in the Broderick Boys. He based his opinion in part on the fact that items seized from the Nunes residence—which included a piece of notebook paper with “SAC,” “916,” “Norte,” and “409” on it; two red bandanas; and a shirt with the character from the movie Scarface on it—showed gang affiliation. Scarface is a violent movie about a gangster that glamorized the mentality that gang members idolize. The red clothing showed the residents were “gang related for the Norteños.”
Also, when Austen was admitted to juvenile hall in 2005, he asked if it was filled with “scraps,” a derogatory term Norteño gang members use for members of the rival Sureño gang. According to Officer Fellows, this showed Austen was a Norteño. Fellows also relied on another incident in 2006, in which Austen was documented wearing a red belt, and on the fact that Austen was shown making gang signs in the photographs taken on the day of the incident.
For similar reasons, Officer Fellows gave his opinion that Pauliton was an active member of the Broderick Boys.
It was also Officer Fellows's opinion that Ramos and the fifth charged defendant (R.R.) were active gang participants. Ramos had admitted he was a Norteño, claiming he was “jumped in” but had not yet put in the work to get his dots. Like Austen, Ramos used a derogatory term for Sureños (“sewer rats”) while in juvenile hall. For his part, R.R. displayed his alignment with the Norteños by putting four dots and the number 14 on his sandals while in juvenile hall.
Officer Fellows explained the concept of respect as it pertains to gang members. A gang member can earn respect quickly by an act of violence since respect is associated with fear in a gang. The more violence a gang commits, the more it cripples the community and makes citizens less likely to stand up and report gang crimes. Fear and intimidation are a gang's ultimate power over the community. Even if gang members do not shout out the name of their gang during an attack, in a small community word of gang violence spreads fast.
Officer Fellows also testified about three members of the Broderick Boys who had been convicted of gang-related crimes.
On cross-examination, Officer Fellows admitted it was not a crime to belong to a gang. Also, he testified the Broderick Boys were disorganized, with no “shot caller.”
In response to a direct question by defense counsel, Officer Fellows testified it was his opinion that the assault on the railroad tracks was a gang crime because numerous gang members were associating and came to the aid of their friend who was being beaten in the fight and “turned the tables.” “Multiple subjects, that's gang mentality, that's a gang attack, it is a gang assault.” The assault was a gang crime because of the association of the gang members, their prior documentation as gang members, their prior contacts with law enforcement, and the photographs showing them acting like gang members by throwing gang signs. Defendants did not just pull a friend away from a fight; they used numerical supremacy to turn the tables.
In response to defense counsel claiming Officer Fellows did not know the whole picture because he had not reviewed all the reports of the incident, Fellows responded he knew that the engineer was
assaulted, that defendants are gang members, that the assault benefited the gang, and that defendants acted in association for the benefit of the gang.
D
Verdict And Judgment
The jury acquitted Bonge of attempted murder, attempted voluntary manslaughter (a lesser included offense of attempted murder), and attempted robbery, but found him guilty of the remaining charges. The jury acquitted Austen of attempted murder but found him guilty of attempted voluntary manslaughter and all of the remaining charges. The jury acquitted Pauliton of attempted murder and attempted robbery but found him guilty of attempted voluntary manslaughter and all of the remaining charges.
As for the sentencing enhancement allegations, the jury found all of the criminal street gang enhancement allegations not true but found the great bodily injury enhancement allegations true as to the charges of the assault with the fire extinguisher (counts 2 and 5), the battery charge (count 8), and the criminal street gang activity charge (count 12).
The parties stipulated the jury should disregard the great bodily injury enhancement allegation on the charge of throwing a missile at a vehicle of a common carrier (count 10).
For each defendant, the trial court designated the assault with a deadly weapon on a public transit employee using the fire extinguisher (count 5) as the principal term and imposed a seven-year prison sentence for the conviction and the associated great bodily injury enhancement. Additionally, the court imposed a consecutive eight-month term on each defendant for the vandalism conviction and a consecutive eight-month term on each defendant for the criminal street gang conviction (although the court stayed the additional term for the associated great bodily injury enhancement). The court also imposed a consecutive eight-month term on Austen for the attempted robbery conviction. The court stayed the terms or sentenced concurrently on all other convictions and enhancements. Thus, the court sentenced Austen to an aggregate term of nine years in prison, Pauliton to a term of nine years and four months (which included a year for a prior charge), and Bonge to a term of eight years and four months.
DISCUSSION
I–VII
See footnote *, ante.
VIII
Section 654
Defendants contend section 654 bars separate punishment for the crime of criminal street gang activity and the underlying felonies used to prove the “felonious conduct” element of that offense because the underlying felonies for which defendants were already separately punished—assault with a deadly weapon (the fire extinguisher) and vandalism—were the acts that transformed their membership in a gang into the substantive gang activity offense. We disagree.
In pertinent part, subdivision (a) of section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no universal construction which directs the proper application of section 654 in every instance.” ( People v. Beamon (1973) 8 Cal.3d 625, 636, 105 Cal.Rptr. 681, 504 P.2d 905.) Nevertheless, our Supreme Court has set forth some basic principles for applying the statute.
In Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, the court explained “ ‘[i]t is the singleness of the act and not of the offense that is determinative.’ Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once.” ( Id. at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.)
But our Supreme Court has also explained that “section 654 refers not to any physical act or omission which might perchance be common to all of a defendant's violations, but to a defendant's criminal acts or omissions.” ( In re Hayes (1969) 70 Cal.2d 604, 607, 75 Cal.Rptr. 790, 451 P.2d 430.) “The proper approach, therefore, is to isolate the various criminal acts involved, and then to examine only those acts for identity.” ( Ibid.)
In Hayes, a majority of our Supreme Court concluded that a defendant who “drove a motor vehicle for some 13 blocks” while under the influence of intoxicating liquor and with knowledge that his driver's license was suspended engaged simultaneously in two distinct criminal acts—“driving with a suspended license and driving while intoxicated”—and could be punished for both, even though both criminal acts had in common the noncriminal act of “driving.” ( In re Hayes, supra, 70 Cal.2d at pp. 605, 607–608, 75 Cal.Rptr. 790, 451 P.2d 430.) Thus, even in a case in which two offenses are based entirely on the same physical act, section 654 may not prohibit punishing the defendant for both offenses. The pertinent question is whether both offenses are based on the same criminal act.
To complicate matters further, even when more than one criminal act is shown, section 654 still may bar multiple punishment in some circumstances. This is so because “ ‘[s]ection 654 has been applied not only where there was but one “act” in the ordinary sense ... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’ [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” ( Neal v. State of California, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.) And “[j]ust as it is the criminal ‘act or omission’ to which section 654 refers, it is the criminal ‘intent and objective’ ” to which Neal refers. ( In re Hayes, supra, 70 Cal.2d at p. 610, 75 Cal.Rptr. 790, 451 P.2d 430.)
With these principles in mind, we turn back to the present case. As we have explained, under subdivision (a) of section 186.22, it is a crime to actively participate in a criminal street gang with knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity, and to willfully promote, further, or assist in any felonious criminal conduct
by members of the gang. Here, in instructing the jury on the “felonious criminal conduct” element of the crime, the trial court instructed that “[f]elonious criminal conduct means committing or attempting to commit any of the following crimes: [¶] Attempted murder, assault with a deadly weapon, battery with serious bodily injury, throwing missiles at the vehicle of a common carrier, attempted robbery or vandalism.”
Thus it is clear the charge of criminal street gang activity was based—at least as far as the “felonious criminal conduct” element of that crime is concerned—on the other felonies with which defendants were charged arising from their attack on the train engineer and their vandalism of the train. The question is whether this relationship between the charges precluded separate punishment under section 654.
California courts have developed two distinct approaches to applying section 654 in this type of situation. In People v. Herrera (1999) 70 Cal.App.4th 1456, 83 Cal.Rptr.2d 307, the defendant personally used a firearm in a gang-related, drive-by shooting and was convicted of (among other things) two counts of attempted murder and one count of criminal street gang activity. ( Id. at pp. 1460–1462, 83 Cal.Rptr.2d 307.) On appeal, Division Three of the Fourth District Court of Appeal concluded the defendant could be separately punished for criminal street gang activity (street terrorism) and attempted murder based on the following analysis:
“The characteristics of attempted murder and street terrorism are distinguishable, even though aspects of one may be similar to those of the other. In the attempted murders, Herrera's objective was simply a desire to kill. For these convictions, the identities (or gang affiliations) of his intended victims were irrelevant. The fact he repeatedly shot a gun on two separate occasions—the interval between the two being brief but distinct—striking cars, occupied apartments and bystanders, is sufficient to establish the specific intent to kill required for both counts of attempted murder. [Citations.]
“In contrast, section 186.22, subdivision (a), encompasses a more complex intent and objective. It is part of the Street Terrorism Enforcement and Prevention Act which was enacted by emergency legislation in 1988. [Citations.] The Legislature passed these criminal penalties and strong economic sanctions as a response to the increasing violence of street gang members throughout the state. Previously, there was no existing law that made the punishment for crimes by a gang member separate and distinct from that of the underlying crimes. [Citation.]
“Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on
behalf of the gang. The perpetrator of the underlying crime may thus possess ‘two independent, even if simultaneous, objectives[,]’ thereby precluding application of section 654. [Citation.]
“Herrera's active participation in [his gang]'s ‘payback’ against [a rival gang] falls squarely within the provisions of section 186.22, subdivision (a), street terrorism. It requires the defendant to actively participate in a criminal street gang, have knowledge that its members engage in criminal activity, and have the intent and objective to further the gang's felonious conduct. (§ 186.22, subd. (a).) Independent of that, Herrera had the simultaneous although separate objective to actively participate in and promote his gang when he attempted to murder [the rival] gang members. Herrera's membership in [his gang] was well established at trial, including expert testimony regarding what such a membership entailed. Herrera testified he got into the Mustang to ‘back up’ or support the gang. He had told his girlfriend that his gang was going to retaliate against [the rival gang]. The gang experts explained that gang warfare uniformly involved guns. The evidence supports the finding that Herrera intended to aid his gang in felonious conduct, irrespective of his independent objective to murder.
“Finally, if section 654 were held applicable here, it would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. ‘[T]he purpose of section 654 “is to insure that a defendant's punishment will be commensurate with his culpability.” [Citation.]’ [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes.” ( People v. Herrera, supra, 70 Cal.App.4th at pp. 1466–1468, 83 Cal.Rptr.2d 307, fns. omitted.)
In People v. Ferraez (2003) 112 Cal.App.4th 925, 5 Cal.Rptr.3d 640, the defendant was convicted of possessing cocaine base for sale and criminal street gang activity on the theory he was selling the rock cocaine for the criminal street gang to which he belonged. ( Id. at pp. 927–929, 5 Cal.Rptr.3d 640.) On appeal, another panel from Division Three of the Fourth District Court of Appeal followed Herrera and concluded that “the trial court was not required to stay defendant's sentence for the gang crime” because “defendant possessed the drugs with the intent to sell, and he also intended to commit that felony to promote or assist the gang. While he may have pursued both objectives simultaneously, they were nonetheless independent of each other.” ( Id. at p. 935, 5 Cal.Rptr.3d 640.)
In People v. Vu (2006) 143 Cal.App.4th 1009, 49 Cal.Rptr.3d 765, the defendant was convicted of conspiracy to commit murder and criminal street gang activity for a gang-related revenge shooting. ( Id. at pp. 1012–1013, 49 Cal.Rptr.3d 765.) On appeal, another panel of Division Three of the Fourth District Court of Appeal concluded the sentence for criminal street gang activity should have been stayed under section 654 because “the acts of conspiracy and street terrorism constituted a criminal course of conduct with a single intent and objective. That single criminal intent or objective was to avenge [a fellow gang member]'s killing by conspiring to commit murder. Although that intent or objective could be parsed further into intent to promote the gang and intent to kill, those intents were not independent. Each intent was dependent on, and incident to, the other.” ( Id. at p. 1034, 49 Cal.Rptr.3d 765.)
Rather than disagree with Herrera and Ferraez, the Vu court claimed those cases were distinguishable. ( People v. Vu, supra, 143 Cal.App.4th at p. 1034, 49 Cal.Rptr.3d 765.) The court claimed Herrera was distinguishable “because the defendant was charged with a course of criminal conduct involving two gang-related, drive-by shootings in which two people were injured,” and Ferraez was distinguishable “because under the facts of that case, the trial court could have found independent objectives.” ( Vu, at p. 1034, 49 Cal.Rptr.3d 765.)
In People v. Garcia (2007) 153 Cal.App.4th 1499, 64 Cal.Rptr.3d 104, the defendant was convicted of carrying a loaded unregistered firearm in public and street terrorism on the theory that he was carrying the firearm for the benefit of a criminal street gang. ( Id. at p. 1502, 64 Cal.Rptr.3d 104.) On appeal, another panel of Division Three of the Fourth District Court of Appeal, without mentioning Vu, followed Herrera and Ferraez and determined that defendant could be punished for both crimes because he “knew he was in possession of a firearm in public, and intended to commit that crime to promote or assist the gang. While he might have pursued these objectives simultaneously, they were independent of each other.” ( Id. at p. 1514, 64 Cal.Rptr.3d 104, fn. omitted.)
In People v. Sanchez (2009) 179 Cal.App.4th 1297, 101 Cal.Rptr.3d 639, the defendant was convicted of robbery and criminal street gang activity (gang participation). ( Id. at p. 1301, 101 Cal.Rptr.3d 639.) On appeal, Division Two of the Fourth District Court of Appeal concluded that “section 654 precludes multiple punishment for both (1) gang participation, one element of which requires that the defendant have ‘willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang,’ and (2) the underlying felony that is used to satisfy this element of gang participation.” ( Sanchez, at p. 1301, 101 Cal.Rptr.3d 639.) In reaching this conclusion, the court considered both Herrera and Vu at some length. ( Sanchez, at pp. 1310–1313, 101 Cal.Rptr.3d 639.) The court noted that “ Vu's effort to distinguish Herrera was less than satisfying” and concluded that “ Herrera simply cannot be reconciled with Vu.” ( Sanchez, at pp. 1312–1313, 101 Cal.Rptr.3d 639.) Then, after discussing “a number of problems” ( id. at p. 1313, 101 Cal.Rptr.3d 639) the court found with Herrera, the Sanchez court explained why section 654 barred separate punishment for gang participation in the case before it:
“Here, the underlying robberies were the act that transformed mere gang membership—which, by itself, is not a crime—into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies....
“In our view, the crucial point is that, here, as in Herrera and Vu, the defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself.” ( People v. Sanchez, supra, 179 Cal.App.4th at p. 1315, 101 Cal.Rptr.3d 639.)
The Sanchez court concluded that “the robberies—even if not gang motivated—were necessary to satisfy an element of the gang participation charge.... Accordingly, almost by definition, defendant had to have the same intent and objective in committing all of these crimes.” ( People v. Sanchez, supra, 179 Cal.App.4th at p. 1316, 101 Cal.Rptr.3d 639.)
The foregoing cases do not reveal a consistent line of reasoning for applying
section 654 to cases, like the present one, where the defendants are convicted both of criminal street gang activity and one or more other felonies, where the other felonies are the “felonious criminal conduct” of the gang that is used to establish the charge of criminal street gang activity. For the reasons that follow, however, we believe the result reached in Herrera and its progeny is the correct one here.
[4] The first question under section 654 is whether the two offenses involved the same criminal act or distinct criminal acts. We believe that when the two offenses are a charge of criminal street gang activity that is based on an underlying felony committed by the defendant and that underlying felony, two distinct criminal acts are involved. This is so because the charge of criminal street gang activity is not based only on the underlying felony that serves as the “felonious criminal conduct” the statute requires, but is also based on the defendant's “active[ ] participat[ion] in [the] criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (a).) Indeed, as the Herrera court observed, participation in the gang is the gravamen of the crime of street terrorism. ( People v. Herrera, supra, 70 Cal.App.4th at p. 1467, 83 Cal.Rptr.2d 307.) Our Supreme Court agrees. ( People v. Albillar, supra, 51 Cal.4th at p. 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062 [“The gravamen of the substantive offense set forth in section 186.22(a) is active participation in a criminal street gang”].)
Under this reasoning, the charges of assault with a deadly weapon and vandalism here were based on criminal acts distinct from the charge of criminal street gang activity. It does not necessarily follow from that conclusion, however, that defendants can be punished separately for all three crimes because we must still examine their criminal “intent and objective” under Neal.
In Neal, the defendant was convicted “of one count of arson and two counts of attempted murder [based] upon [his] act of throwing gasoline into the bedroom of [a married couple] and igniting it.” ( Neal v. State of California, supra, 55 Cal.2d at p. 18, 9 Cal.Rptr. 607, 357 P.2d 839.) In concluding that the defendant could not be separately punished for arson, the Supreme Court wrote as follows:
“If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [¶] ... [¶] In the instant case the arson was the means of perpetrating the crime of attempted murder.... [Separate punishment for the arson] violated ... section 654, since the arson was merely incidental to the primary objective of killing [the couple].” ( Neal v. State of California, supra, 55 Cal.2d at pp. 19–20, 9 Cal.Rptr. 607, 357 P.2d 839.)
In effect, the court in Neal concluded the defendant had only one criminal objective—murdering the couple. Because the crime of arson was merely the means by which the defendant sought to accomplish that single objective, the defendant could not be punished for both attempted murder and arson under section 654.
We do not believe the reasoning from Neal compels the conclusion here that defendant can be punished only for the crimes of assault with a deadly weapon and vandalism and not for the crime of criminal street gang activity as well. Unlike in Neal, where the arson was merely “the means of perpetrating the crime of attempted murder,” here one crime was not merely the means of perpetrating the other. On this point, it is important to emphasize that criminal street gang activity requires not only the commission of
“felonious criminal conduct by members of [a] gang,” but also “active[ ] participat[ion] in [the] gang” separate and apart from that felonious conduct. (See People v. Castenada (2000) 23 Cal.4th 743, 752, 97 Cal.Rptr.2d 906, 3 P.3d 278 [describing “section 186.22(a)'s plainly worded requirements” as “criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang”].) Thus, while the attack on the train engineer and/or the vandalism of the train were part of the crime of criminal street gang activity, the crimes were not coextensive, and thus the attack and/or the vandalism were not simply the means by which defendants committed the crime of criminal street gang activity, as the arson was the means by which the defendant committed attempted murder in Neal. Under this circumstance, the trial court was not bound to conclude the crime of criminal street gang activity involved the same objective as the assault and the vandalism, such that separate punishment could not be imposed for the gang crime.
In reaching this conclusion, we echo the Herrera court's observation that “if section 654 were held applicable here, it would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang,” which would tend “to exempt the most culpable parties from the punishment under the street terrorism statutes.” ( People v. Herrera, supra, 70 Cal.App.4th at p. 1468, 83 Cal.Rptr.2d 307.) Such a result would be inconsistent with the laudable legislative purpose behind section 186.22, which is to punish criminal conduct by gang members more harshly.
As our Supreme Court recently observed in concluding that the “felonious criminal conduct” required for a conviction of criminal street gang activity does not have to be “gang related,” “there is nothing absurd in targeting the scourge of gang members committing any crimes together and not merely those that are gang related. Gang members tend to protect and avenge their associates. Crimes committed by gang members, whether or not they are gang related or committed for the benefit of the gang, thus pose dangers to the public and difficulties for law enforcement not generally present when a crime is committed by someone with no gang affiliation.” ( People v. Albillar, supra, 51 Cal.4th at p. 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062.)
We grant the People's request for judicial notice of the legislative history of the STEP Act.
Because the criminal street gang sentence enhancement under subdivision (b) of section 186.22 requires that the felony to which it attaches be gang related—that is, “committed for the benefit of, at the direction of, or in association with a[ ] criminal street gang”—that enhancement will not always apply to concerted criminal conduct by members of a gang. In fact, that is exactly what happened here. The jury concluded that defendants did not attack the train engineer or vandalize the train for the benefit of, at the direction of, or in association with the criminal street gang to which they belonged (the Broderick Boys). Nonetheless, defendants did willfully promote, further, or assist felonious criminal conduct by their gang when they jointly engaged in the attack and the vandalism. The Legislature's intent that gang members be punished more severely for their criminal conduct would be subverted if section 654 were construed to prevent separate punishment for the offense of criminal street gang activity and the felonious conduct that constitutes an
element of the gang activity offense. Although the additional punishment in a case like this is relatively small (eight months), we do not believe the Legislature intended to exempt gang members from that punishment by creating a crime that—if subject to section 654 as applied in Vu and Sanchez—would almost never result in any punishment.
For the foregoing reasons, we conclude the trial court did not err in failing to stay the sentence on the charge of criminal street gang activity pursuant to section 654.
IX
See footnote *, ante.
DISPOSITION
The convictions for assault with a deadly weapon (counts 2, 3, and 4) and the great bodily injury enhancements on the conviction for battery with serious bodily injury (count 8) are reversed. The amount of the court security fee is corrected as follows: Austen Nunes, $220; Pauliton Nunes, $200; and Daniel Bonge, $180. In all other respects, the judgments are affirmed. The trial court is directed to prepare amended abstracts of judgment showing these changes and to forward certified copies to the Department of Corrections and Rehabilitation.
NICHOLSON, Acting P.J., Concurring.
I concur in the opinion, except as to part VIII. As to that part, I concur in the result, but my reasoning differs.
Penal Code section 654 (hereafter, section 654) and the Supreme Court's gloss on that statute in Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 have created a nearly unnavigable collection of factors to consider when deciding whether a defendant can be punished separately for two offenses. It seems that each court picks and chooses its desired destination and then finds a course to follow to get to that destination, relying on the wording of section 654, the Supreme Court's language in Neal, or the language of subsequent cases discussing the defendant's act, criminal act, intent, objective, goal, course of conduct, transaction, or some combination of those considerations. Application of section 654 has become a judicial exercise in creativity.
In my opinion, the best course to follow in applying section 654 is to go back to the most basic tenet of statutory interpretation—what did the Legislature intend? ( People v. Robinson (2010) 47 Cal.4th 1104, 1138, 104 Cal.Rptr.3d 727, 224 P.3d 55 [ascertain Legislature's intent to effectuate law's purpose].)
The Supreme Court has helped us out with that question: “The purpose of [section 654's] protection against punishment for more than one violation arising out of an ‘act or omission’ is to insure that a defendant's punishment will be commensurate with his culpability. (See Neal v. State of California, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.) ‘Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an “act or omission,” there can be no universal construction which directs the proper application of section 654 in every instance.’ [Citations.]” ( People v. Perez (1979) 23 Cal.3d 545, 550–551, 153 Cal.Rptr. 40, 591 P.2d 63.)
I believe, therefore, that the determination of whether a defendant can be punished for two crimes or, on the other hand, must be punished for only one of them rests on the simple question of whether punishing the defendant for just one of
those crimes “insure[s] that [the] defendant's punishment will be commensurate with his culpability.” ( People v. Perez, supra, 23 Cal.3d at p. 551, 153 Cal.Rptr. 40, 591 P.2d 63.)
Most often, the application of this principle is straightforward and uncontroversial. For example, a person shoots at a uniformed police officer. That person has committed at least two crimes: (1) assault with a firearm (Pen.Code, § 245, subd. (a)(2); punishable by up to four years in state prison) and (2) assault with a firearm on a peace officer (Pen.Code, § 245, subd. (d)(1); punishable by up to eight years in state prison). Sentencing is straightforward: the court sentences on the crime with the longer sentence (assault with a firearm on a peace officer) and stays the sentence on the crime with the shorter sentence (assault with a firearm). Application of section 654 is required in this hypothetical case because a sentence for assault with a firearm on a peace officer covers the extent of the defendant's culpability. In other words, he is not more culpable because technically he also committed an assault with a firearm. Also, in this simple hypothetical, all of the elements of the assault with a firearm are subsumed in the assault with a firearm on a peace officer.
Here, imposing the sentence on the assault and vandalism counts and staying the sentence on the gang participation count would fail to insure punishment commensurate with the defendant's culpability. Legislation dictates that participation in a gang is independently culpable, yet there would be no punishment with respect to that culpability if the defendant were punished for assault and vandalism only. Put another way, a person who commits assault and vandalism while participating in a criminal street gang is more culpable than a person unassociated with a gang who commits assault and vandalism. Stepping back from all of the gloss that has been slathered on section 654, we cannot say that the Legislature intended those two hypothetical individuals to be punished equally.
One further observation: the section 654 difficulty arises here because the street gang participation count is a separate crime and not an enhancement. (And I recognize that the jury found the enhancement not true, which is irrelevant to sentencing.) Nonetheless, I see no defensible reason to allow additional punishment for a gang enhancement while barring additional punishment if the gang participation is a separate crime. The Legislature could not have intended that result.
I therefore agree that the sentence is proper.
DUARTE, J., Dissenting.
I begin with a question: If the gang charge were assigned the “longest potential term of punishment,” would we question the application of section 654 to stay sentence for assault and vandalism on the facts of this case?
I have pored over this question at length, and have concluded that I, at least, would not.
Here we have a jury specifically instructed that it could consider only the assault and vandalism charges to prove an essential element of the gang charge. There was no special verdict form; we must presume the jury considered both the assault and vandalism charges in finding the third element of the gang charge.
Under these specific circumstances, I fail to see how imposing sentence on the assault and vandalism, as well as the gang charge, of which the underlying charges of assault and vandalism are an integral part,
is not punishing the assault and vandalism charges twice, in clear violation of Penal Code
Therefore, I am compelled to dissent from Part VIII.
The majority opinion focuses on the extra elements, activities, associations, and culpabilities associated with the gang charge, as does the concurrence. I do not think that any of these “extras,” although certainly not unimportant, are actually criminal acts, but I save that discussion for another day. The focus of my disagreement is not the gang charge but rather the assault and vandalism. In this particular case, because of the manner in which the case was charged, prosecuted, and instructed, the assault and vandalism charges are, in and of themselves, the entirety of the third element of the gang charge. Punishing these defendants for the gang charge in addition to punishing them for the assault and vandalism charges punishes them under two provisions of law for the criminal acts that constitute assault and/or vandalism. We need not even address defendants' intent and objective, because section 654 applies by its plain language to the facts of this case, given the manner in which it was prosecuted.
I recognize that applying section 654 in this case mandates a counterintuitive result. This is because, here, the gang charge, while the more culpable behavior, carries a lesser sentence than assault, and certainly a lesser sentence than assault and vandalism combined. Thus, the underlying acts of the gang charge are also those acts that “provide[ ] for the longest potential term of imprisonment.” (§ 654, subd. (a).) This creates the anomalous result of sentencing only on the underlying conduct, the assault and vandalism charges, rather than on the gang charge—a result that appears to thwart the goal of punishment commensurate with culpability.
As I agree that this is an important goal, I understand and share the consternation created by this anomalous result. But I simply cannot agree to disregard the otherwise proper application of section 654 merely because of the anomaly created by the particular set of circumstances that present themselves here.
I therefore respectfully dissent from Part VIII, and concur in the remainder of the majority opinion.