Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County. Charles Clay III, Judge, No. TJ13413
John A. Colucci, 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, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P.J.
D.B. appeals from the orders declaring wardship (Welf. & Inst. Code, § 602) and committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities, after findings that he committed murder (Pen. Code, § 187, subd. (a)), possessed a fireman as a minor (§ 12101, subd. (a)(1)), and possessed live ammunition as a minor (§ 12101, subd. (b)(1)). The juvenile court found true allegations that D.B. was an active participant in a criminal street gang and had committed the murder for the benefit of that gang. (§§ 190.2, subd. (a)(22), 186.22, subd. (b)(1)(C).) The juvenile court also found true allegations that during commission of the murder, he personally and intentionally discharged a firearm, causing death to the victim. (§ 12022.53, subd. (d).) The juvenile court set the maximum time of confinement at 50 years to life for murder, eight months for the firearm possession, two months for the live ammunition possession, and six months for two previously sustained petitions for vandalism and robbery.
All references are to the Penal Code unless otherwise stated.
D.B. contends that (1) the evidence is insufficient to support a finding of first degree murder, (2) the evidence is insufficient to support the gang enhancement, (3) the juvenile court erred when it sustained two counts of murder (one count for street gang murder, one count for murder) for the same act of homicide on the same victim, (4) section 654 precludes punishment for firearm possession because that offense was incidental to the greater offense of murder, and (5) section 654 precludes punishment for ammunition possession because that offense was incidental to the greater offense of firearm possession. We agree that the prosecution presented insufficient evidence to support the gang enhancement and that the juvenile court should have stayed punishment on the ammunition possession count. We further conclude that sufficient evidence supports the finding of first degree murder and that section 654 does not preclude punishment for firearm possession under the facts of this case.
FACTUAL AND PROCEDURAL BACKGROUND
A. The prosecution.
On December 1, 2004, Rachel Church was at Tam’s Hamburger Stand on the corner of 101st Street and Figueroa Street in Los Angeles. Sometime between 8:00 and 8:45 a.m., Church saw an acquaintance, Larry Wesley, Jr., drive into the parking lot of Tam’s. Both Church and Wesley came to Tam’s almost on a daily basis. After Wesley bought some food, he returned to his car (a sport utility vehicle) and began backing out of the parking lot. Church saw “a young man walk down the street and cross over to the SUV and shoot [Wesley] through the passenger window.” She heard four or five shots. Initially, Church could not see the shooter’s face because he was wearing a white hooded sweatshirt. However, as the shooter ran from the car and down an adjacent alley, Church saw his face. According to Church, nothing obstructed her view of the shooter’s face and she was “100 percent positive” that the shooter was D.B. She knew D.B. and could recognize his face because she had personally given money to D.B. to purchase crack cocaine on her behalf on three prior occasions. At the time of the shooting, Church was a prostitute and had been a daily crack cocaine user for 11 years.
The medical examiner confirmed that Wesley died of multiple gunshot wounds. He received six gunshot wounds, three of which entered the head, chest, and abdomen.
During cross-examination, defense counsel asked several questions about whether Church would characterize herself as a “heavy user” and whether she had “control” over her addiction. Church testified that she was not a heavy user and could “quit it cold turkey.” The prosecution objected to additional questions on this topic and the juvenile court sustained the objection, ruling that Church’s efforts to quit the drug had been adequately covered. Neither party questioned Church about whether she was under the influence of crack cocaine at the time she witnessed the shooting.
When the police interviewed Church on the day of the shooting, she described the shooter as 5’8”, 160 pounds, between the ages of 28-32, and having a “real, real dark” complexion. Although Church knew D.B.’s first name at the time of the shooting, she told the police that she did not know his name. Church also did not tell the police that she knew Wesley and considered him her friend.
On December 6, Detective John Zambos presented Church with four photographic six-pack displays, two that contained photographs of juveniles and two that contained photographs of adults. According to Zambos, Church “immediately” selected the photograph of D.B. and identified him as the shooter. Police officers arrested D.B. that day. D.B. waived his Miranda rights and told Zambos that he was at his aunt’s house in Carson when the shooting occurred. On the date of his arrest, D.B. was 13 years old and measured 5’1” in height.
The record contains no evidence regarding D.B.’s weight at the time.
Ben Perez, a police officer assigned to the Los Angeles Southeast Division, testified as the prosecution’s gang expert. At the time of the adjudication, Perez had worked as an officer for over 10 years. During that period, he worked for four years at the “Southeast Gang Enforcement Detail” monitoring different street gangs, including the Denver Lane Bloods (Bloods). While working that detail, Perez had “thousands” of contacts, custodial and noncustodial, with members of the Bloods. Additionally, Perez had attended courses on Los Angeles street gangs.
Perez testified that at the time of the shooting, the Bloods had approximately 250 members and engaged in a “pattern of criminal activities” that included “[m]urders, shootings, robberies, burglaries, vehicle theft, narcotic sales, witness intimidation [and] home invasion robberies.” According to Perez, the territory controlled by the Bloods bordered the territory controlled by the Hoover Crips (Crips), a rival gang to the Bloods. At the time, Tam’s was located within Crips’ territory.
Perez explained that when Bloods members cross into rival territory to commit violent acts, they do so to create and sustain fear and intimidation from community members and members of rival gangs. The commission of violent acts in a rival’s territory gives Bloods members “street credibility” insofar as it demonstrates their willingness to suppress opposition. Perez further explained that when Bloods members commit violent acts in public, such as the homicide committed in this case, those acts increase the community’s fear of the gang and entrenches their unwillingness to assist authorities in investigations. According to Perez, even though Wesley was not a member of the Crips, his public murder benefitted the Bloods because it increased their visibility within rival territory. Finally, Perez testified that a gang’s status within the overall gang culture and prison system increases with the number of violent acts committed by the gang’s members.
According to Perez, D.B. had been an active member of the Bloods since 2004 and went by the moniker “Act Up.” Perez based his opinion on personal observations of D.B. attending “gang functions,” “hanging out with known [Bloods] gang members” at places they frequently congregate including known drug trafficking locations, and wearing red, the Bloods’ signature color, within gang territory. Sometime prior to the shooting, Perez witnessed D.B. “swinging wildly” at an elderly man and trying to steal items from the man’s pockets. Perez testified that D.B.’s willingness to commit murder demonstrated his desire to elevate his status within the gang and gain approval and respect from older gang members.
B. The defense.
Doris Bell and her husband Terry Tabs testified as D.B.’s alibi witnesses. According to Bell and Tabs, on November 30, 2004 (the day before the shooting), D.B. spent the night at their home in Inglewood. The following morning, Bell, Tabs, D.B., and Bell’s son, drove to Paramount in order to drop Bell off at her jobsite. They arrived at Paramount sometime between 8:15 to 9:00 am. Tabs, D.B., and Bell’s son turned around and drove back to Los Angeles and dropped D.B. off at his home sometime around 9:30 to 9:45 am. D.B.’s home is located several blocks from where the shooting occurred.
Steven Thornton, the court-appointed defense investigator, testified for the defense. Thornton interviewed Church twice in May 2005. According to Thornton, Church made the following statements during their interviews: (1) She did not witness the shooting and only looked up after she heard shots. (2) She did not know D.B. and had never heard of his name prior to the shooting. (3) Police officers told her the shooter was a person named “Tweet,” but nonetheless instructed her to select D.B. from the six-pack photographic display. Although Thornton took notes during the interviews, he did not document any of these statements in his notes. The only relevant statement attributed to Church in his notes is: “Cops guided her I.D. in the mug show up. They mentioned the name Tweet and told her he did it.”
Police officers arrested “Tweet,” whose birth name is W.C., as the driver of a car that D.B. arrived in prior to the shooting. According to Perez, Tweet is an active member of the Denver Lane Bloods.
Eddie Baker, a witness for the defense, testified that he was at Tam’s on the morning of the shooting. At one point, he saw two people in a four-door Taurus pull up and exit the car. He later heard shots and saw a “young man with a hooded sweater” run down an adjacent alley. According to Baker, the man’s hood was over his head and Baker did not see his face.
C. The findings and confinement period.
The juvenile court found that D.B. committed first degree murder and possessed a firearm and live ammunition as a minor. The juvenile court also found true the allegations that: (1) D.B. intentionally killed the victim while he was an active participant in a criminal street gang, and for the purpose of furthering the activities of that gang, and (2) D.B. personally and intentionally used and discharged a firearm that proximately caused death. Based on its findings, the juvenile court sustained the petition on all four counts: (1) criminal street gang murder, (2) murder, (3) possession of a firearm by a minor, and (4) possession of live ammunition by a minor.
The juvenile court committed D.B. to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities, and set the maximum confinement period at 50 years to life for murder, eight months for the firearm possession, two months for the live ammunition possession, and six months for two previously sustained petitions for vandalism and robbery.
DISCUSSION
A. Substantial evidence supports the finding that D.B. committed first degree murder.
D.B. contends insufficient evidence supports the trial court’s finding that he committed murder. He focuses his argument on Church’s eyewitness testimony and argues that the testimony “was so inconsistent with her prior descriptions and so inherently improbable,” that it amounted to “‘practically no evidence at all.’”
“‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’ [Citation.]” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088.) “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (Ibid.)
Determination of credibility is the exclusive province of the fact finder and the appellate court “must accord due deference to the trier of fact and not substitute [its] evaluation of a witness’s credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314; People v. Ochoa, supra, 6 Cal.4th 1199, 1206 [“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]”].)
“It is well settled that, absent physical impossibility or inherent improbability, the testimony of a single eyewitness is sufficient to support a criminal conviction.” (People v. Allen (1985) 165 Cal.App.3d 616, 623.) “‘To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]’” (Ibid.) “Further, [the trier of fact] is entitled to reject some portions of a witness’ testimony while accepting others. [Citation.] Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate. [Citation.]” (Ibid.)
Here, Church testified that on the day of the shooting, she saw a “young man” in a white hooded sweatshirt approach Wesley’s vehicle from the street. According to Church, when the individual reached Wesley’s vehicle, he shot Wesley several times through the passenger window. As the individual ran away from the vehicle and down an adjacent alley, he turned around and Church saw a “full facial view of him.” Church testified that nothing obstructed her view and she recognized the shooter as D.B. Church knew D.B. and could recognize his face because she had personally given money to D.B. to purchase drugs on her behalf on three occasions prior to the shooting. Church testified that she was “100 percent positive” that D.B. was the person who shot Wesley.
Church’s testimony was supported by officer Zambos, who testified that Church “immediately” identified D.B. from a six-pack photographic display. Her testimony was also supported by Baker, who testified that even though he did not witness the shooting, he saw a “young man with a hooded sweater” run down the same alley.
Church’s testimony, bolstered by the testimony of Zambos and Baker, was sufficient to support the trial court’s finding that D.B. committed murder.
Without question, Church’s testimony contained several contradictions. She initially told the police that the shooter was 5’8”, 160 pounds, and between the ages of 28-32. However, at the time of his arrest, D.B. measured 5’1” in height and was 13 years old. Further, Church described the shooter as having a “very, very dark” complexion, but later testified at trial that D.B. appeared to have a lighter complexion than he did on the day of the shooting. She initially told police that she did now know either D.B. or the victim, but later testified that she had known D.B. for some time and considered the victim a “friend.” Finally, she initially told police that she had been at Tam’s for an hour and forty five minutes prior to the shooting, and was standing at the corner of 101st Street and Figueroa Street when the shooting occurred. She later testified that she was at Tam’s for 20 minutes before the shooting occurred, and was standing at a pay phone located “a little bit away from the corner.” Finally, the defense investigator testified that Church admitted to having never met D.B. and selecting D.B.’s photograph simply because the police had instructed her to do so.
Neither party presented evidence of D.B.’s weight at the time of his arrest.
Although these contradictions could have served as a basis for the juvenile court to question Church’s credibility, the trial court clearly chose to believe her testimony that D.B. was the shooter. Her contradictions did not render her testimony physically impossible or inherently improbable and “we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
As a fallback position, D.B. argues that insufficient evidence supported the trial court’s finding that he committed first degree murder and urges us to reduce the finding to second degree murder. According to D.B., the evidence does not support a finding of “premeditation and deliberation.”
The trial court did not make an explicit finding of first-degree murder. Rather, it sustained all counts of the petition, which included one count of “street gang murder,” which is first degree murder with the special circumstance of having been committed to further the activities of a criminal street gang. (§ 190.2(a)(22).)
“The test on appeal is whether a rational juror could, on the evidence presented, find the essential elements of the crime-here including premeditation and deliberation-beyond a reasonable doubt. (People v. Stewart (2004) 33 Cal.4th 425, 495.) A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner. (People v. Anderson (1968) 70 Cal.2d 15, 27 [provides framework or guidelines typically used to evaluate evidence of premeditation and deliberation].)” (People v. Romero (2008) 44 Cal.4th 386, 400-401.)
Further, an “execution-style manner of killing supports a finding of premeditation and deliberation when, as here, there is no indication of a struggle.” (People v. Romero, supra, 44 Cal.4th at p. 401; see also People v. Stewart (2004) 33 Cal.4th 425, 495 [“killing was accomplished by a single execution-style shot fired from close range into the victim’s forehead, in circumstances showing no evidence of a struggle. This plainly supports a finding of premeditation and deliberation”]; People v. Bloyd (1987) 43 Cal.3d 333, 348 [evidence of “point-blank” shots to the head “described actions that were cold and calculated - execution-style killings”].) “[P]remeditation and deliberation can occur in a very short period of time. (People v. Velasquez (1980) 26 Cal.3d 425, 435.) The test is not time, but reflection. “‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. ...’” (Ibid.)” (People v. Bloyd, supra, 43 Cal.3d at p. 348.)
There was sufficient evidence to support a finding of premeditation and deliberation in this case. First, there was evidence of planning. According to Church’s testimony, D.B. wore a hooded sweatshirt to partially disguise his face, walked directly up to Wesley’s vehicle, shot Wesley at close range, and ran down an adjacent alley. Although this entire sequence took place within a short period, “premeditation and deliberation can occur in a very short period of time.” (People v. Velasquez (1980) 26 Cal.3d 425, 435.) The nature of Wesley’s execution-style killing also shows premeditation and murder. He was shot six times at close range with three bullets to the vital areas of the head, chest, and abdomen. Second, there was evidence of motive. Perez testified that the Bloods, and their members including D.B., would benefit from Wesley’s murder because it occurred in rival Crips’ territory, thereby increasing the Bloods’ overall status and visibility. Perez also testified that D.B. would gain respect from his gang peers and earn additional benefits (such as money, alcohol, and narcotics) for his willingness to commit such a serious crime at a young age.
For these reasons, we conclude sufficient evidence supports the trial court’s finding that D.B. committed first degree murder.
B. Substantial evidence does not support the section 186.22 gang enhancement.
D.B. contends that the evidence was insufficient to support the gang enhancement because there was no showing of the gang’s primary activities. We agree.
“The Street Terrorism Enforcement and Prevention Act” (STEP Act) was enacted by the Legislature in 1988. ([Pen.Code,] § 186.20 et seq.) Its express purpose was ‘to seek the eradication of criminal activity by street gangs.’ (§ 186.21.) One of the components of the STEP Act is a sentence enhancement provision for crimes committed ‘for the benefit of, at the direction of, or in association with any criminal street gang.’ (§ 186.22, subd. (b)(1).)
“A gang sentence enhancement under section 186.22 must be based upon ‘substantial evidence . . . support[ing a] finding of the existence of a “criminal street gang” whose members engage in a “pattern of criminal gang activity.” [Citations.]’ [Citation.] Section 186.22(f) defines ‘criminal street gang’ for purposes of determining the appropriateness of a gang sentencing enhancement, as follows: ‘[A]ny ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of [section 186.22,] subdivision (e), 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.’
“Therefore, the ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying sign or symbol’; (2) that the group has as one of its ‘primary activities' the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ (People v. Gardeley (1996) 14 Cal.4th 605, 617 [ ] (Gardeley).) . . .
“. . . In People v. Sengpadychith (2001) 26 Cal.4th 316 [ ] (Sengpadychith), the [Supreme C]ourt explained: ‘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.] . . .
“The court noted further that ‘[s]ufficient 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.’ (Sengpadychith, supra, 26 Cal.4th at p. 324.) It held further that the ‘primary activities’ element might also be satisfied by expert testimony of the type found in Gardeley, supra, 14 Cal.4th 605, where a police gang expert testified that the defendant’s gang ‘was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.]’ (Sengpadychith, supra, 26 Cal.4th at p. 324.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“‘Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities.’ (Sengpadychith, supra, 26 Cal.4th at p. 323.) Such evidence alone, however, is ‘[n]ot necessarily’ sufficient to establish the ‘primary activities; requirement. (Ibid.) Indeed, ‘evidence sufficient to show only one offense [enumerated under section 186.22, subdivision (e)] is not enough.’ [Citations.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1221-1223, fn. omitted.)
We turn to Perez’s testimony on this point:
“Q: Do Denver Lane Bloods gang members engage in [a] pattern of criminal activities?
“A: Yes, they do.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Q: What would be the types of criminal activities that you have knowledge of Denver Lane Bloods gang members engaging in?
“A: Murders, shootings, robberies, burglaries, vehicle theft, narcotic sales, witness intimidation, home invasion robberies.”
Additionally, Perez testified that the Bloods controlled an area in which “frequent” and “known” narcotics sales occurred.
The Attorney General relies on Perez’s numerous contacts with Bloods members, contacts that included “[m]urders, shootings, robberies, burglaries, vehicle theft, narcotic sales, witness intimidation, home invasion robberies.” But here, as in In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612, “[n]o specifics were elicited [in Perez’s testimony] as to the circumstances of these crimes . . . [and Perez] did not directly testify that criminal activities constituted [Bloods’] primary activities.” Perez simply testified that the Bloods engaged in various felonies. His failure to testify that these felonies constituted the gang’s “primary activities” is fatal to the gang enhancement.
With respect to whether the gang allegations may be adjudicated again on remand, we note that in People v. Seel (2004) 34 Cal.4th 535, the California Supreme Court determined that when a sentence enhancement “‘is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’” (Id. at pp. 546-547, quoting from Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19.) Relying on Apprendi, the Seel court held a premeditation finding which an appellate court determines is not supported by substantial evidence cannot be retried because premeditation is an element of the crime of attempted murder and not a mere sentencing enhancement. (People v. Seel, supra, 34 Cal.4th at p. 550.)
A defendant is as entitled to a jury trial on the elements of an enhancement statute such as Penal Code section 186.22 as he is on the elements of the underlying offenses. (Sengpadychith, supra, 26 Cal.4th at p. 327.) By parity of reasoning with People v. Seel, supra, 34 Cal.4th 535, further adjudication on the gang allegation is therefore barred under the doctrine of double jeopardy, and on remand the allegation must be dismissed.
C. Section 654 precludes punishment for Count Four, but not Count Three.
The juvenile court sustained Count Three for firearm possession in violation of section 12101, subdivision (a), and ordered a confinement period of eight months. The juvenile court also sustained Count Four for ammunition possession in violation of section 12101, subdivision (b), and ordered a confinement period of two months. D.B. contends that the juvenile court should have stayed punishment on the firearm and ammunition possession offenses because they were incidental to the greater offense of murder. Alternatively, D.B. contends that the juvenile court should have stayed punishment on the ammunition possession offense because it was incidental to the greater offense of firearm possession.
“Section 654 of the Penal Code prohibits the imposition of multiple punishment if either a single act or a course of criminal conduct engaged in with a single objective is charged as the basis of multiple convictions. Under such circumstances, the defendant can be punished only for the more serious offense.” (People v. Diaz (1967) 66 Cal.2d 801, 806 -807.) “Whether a course of criminal conduct is divisible and consequently gives rise to more than one act within the meaning of section 654 of the Penal Code is determined by the intent and objective of the actor.” (Ibid.) “If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) However, section 654 does not preclude multiple punishment if a defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other . . . .” (Ibid.)
Section 654, subdivision (a) provides: “An 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.”
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) “Its findings will not be reversed on appeal if there is any substantial evidence to support them.” (Ibid.) “If multiple punishment has been erroneously imposed, the appropriate procedure on appeal is to eliminate the effect of the judgment as to the lesser offense or offenses insofar as the penalty alone is concerned.” (People v. Diaz, supra, 66 Cal.2d at p. 807.)
In determining whether section 654 precludes D.B.’s punishment for the third count of firearm possession by a minor, both parties cite to cases involving violations of section 12021, which prohibits possession of a firearm by an ex-felon. In those cases, application of section 654 depends largely on whether the defendant brings the firearm to the scene of the greater offense. In cases where the defendant comes into possession of the firearm just as he commits the greater offense, then courts have concluded that section 654 bars punishment for both possession and the greater offense. (See, e.g., People v. Bradford (1976) 17 Cal.3d 8, 13 (Bradford) [patrol officer stopped defendant for a moving violation; defendant took the officer’s gun and shot the officer; held: section 654 precluded punishment for both possession and assault with a deadly weapon]; People v. Venegas (1970) 10 Cal.App.3d 814, 821 (Venegas) [defendant shot companion at bar; there was no evidence that defendant possessed the firearm before the assault and defense presented evidence that defendant obtained the gun during a struggle moments before the shooting; held: section 654 precluded punishment for both possession and assault].) In cases where the defendant arrives at the scene of the greater offense with the firearm, however, courts have concluded that section 654 does not bar punishment for both offenses. For example, in Jones, supra, 103 Cal.App.4th 1139, the defendant (an ex-felon) went to his ex-girlfriend’s house and asked to see her. When he learned that she was not at home, he left, returned 15 minutes later, and began shooting into her home. The Court of Appeal upheld concurrent punishments for possession of a firearm and shooting at an inhabited dwelling. (Id. at pp. 1146-1147.) It concluded that defendant “harbored separate intents in the two crimes,” i.e., an intent to possess the firearm when defendant first obtained it and a second intent to shoot at his ex-girlfriend’s house. (Id. at p. 1147)
D.B. contends that his situation is more like the situations in Bradford and Venegas, while the prosecution contends that his situation is more like the situation in Jones.
We conclude that Jones is more on point. D.B.’s possession of a firearm prior to his murder of Wesley constitutes sufficient evidence to support the trial court’s finding that D.B. harbored separate intents in the two crimes. Unlike the defendants in Bradford and Venegas who fortuitously came across the firearm at the scene of the offense, the only evidence in this case was that D.B. approached Wesley’s vehicle and deliberately shot Wesley without any struggle. Although Church did not see D.B. carrying a firearm as he approached Wesley’s car, given the absence of a struggle or some other circumstance in which D.B. could have obtained the firearm just before shooting Wesley, the juvenile court could properly infer that D.B. possessed the firearm and ammunition before he arrived at the scene of Wesley’s murder. Thus, the juvenile court properly imposed punishment for the third count of firearm possession.
The juvenile court, however, erred by imposing a sentence for the fourth count of ammunition possession. “Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment.” (People v. Lopez (2004) 119 Cal.App.4th 132, 138.) The prosecution agrees, stating “the court erred . . . . Section 654 precludes multiple punishment for possession of a firearm and possession of ammunition when the ammunition is loaded into the firearm.”
DISPOSITION
The finding under section 186.22 that D.B. committed murder for the benefit of a criminal street gang is reversed and the matter is remanded to the juvenile court with directions to dismiss this finding and, accordingly, to recalculate the minors’ maximum period of confinement based on first degree murder. On remand the juvenile court is further ordered to stay punishment on the fourth count for ammunition possession. In all other respects, we affirm the orders sustaining the petition and setting the confinement periods.
I concur: ROTHSCHILD, J.
HASTINGS, J., Dissenting.
I concur with the majority’s opinion on everything except for the gang enhancement. I would affirm the gang enhancement because there is substantial evidence to support it.
“[T]he ‘criminal street gang’ component of a gang enhancement requires proof of three essential elements: (1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying symbol’; (2) that the group has as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Vy, supra, 122 Cal.App.4th at p. 1222.) “Primary activity” means that it is one of the gang’s “chief” or “principal” occupations. (Sengpadychith, supra, 26 Cal.4th at p. 323.) The prosecution may prove a gang’s primary activities through expert testimony. (Id. at p. 324.) D.B. challenges only the evidence supporting the second element of primary activities.
The enumerated crimes include unlawful homicide, robbery, assault with a deadly weapon, narcotics sales, and witness intimidation. (Pen. Code, §186.22, subd. (e).)
We turn to Perez’s testimony on this point:
“Q: Do Denver Lane Bloods gang members engage in [a] pattern of criminal activities?
“A: Yes, they do.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Q: What would be the types of criminal activities that you have knowledge of Denver Lane Bloods gang members engaging in?
“A: Murders, shootings, robberies, burglaries, vehicle theft, narcotic sales, witness intimidation, home invasion robberies.
Additionally, Perez testified that the Bloods controlled an area in which “frequent” and “known” narcotics sales occurred.
Viewing the evidence in the light most favorable to the judgment below, Perez’s testimony constituted substantial evidence to support the trial court’s implied finding that one of the Bloods’ “primary activities” was engaging in frequent narcotic sales in an area which they controlled, one of the enumerated crimes in section 186.22, subdivision (e). Although Perez did not explicitly use the term “primary activity” as D.B. points out, that is clearly inferred from the context of his testimony. Additionally, Church testified that she had purchased narcotics from D.B. in Denver Lane Blood territory, a point made by the prosecution in closing argument. In addition, the prosecution made the following observation in closing argument: “Officer Perez also told the court that he had observed the defendant in the area of 107th Street and Figueroa on times prior to the murder, and he characterized that area as an area frequented by prostitutes as well as known drug dealers and narcotics sales. That information -- those observations of Officer Ben Perez corroborates Rachel Church’s testimony [that]when she told the court that she had purchased drugs in that same area known to her to be Denver Lane Bloods gang area from this particular minor, D.B.”
Citing In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), D.B. contends that Perez’s testimony “lacked an adequate foundation.” According to D.B., “there was no foundation provided for the source of the information which the gang expert proffered and the evidence was ‘conclusory’ evidence and of unknown reliability.” We are not persuaded by D.B.’s argument.
In Alexander L., when asked about the primary activities of the gang in question, the gang expert 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 in auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.” (Id. at p. 611) The Court of Appeal concluded the expert’s testimony lacked an adequate foundation because “information establishing reliability was never elicited from him at trial” and it was “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.) The Alexander L. court contrasted this inadequate foundation with the foundation laid in People v. Gardeley, supra, 14 Cal.4th at page 620, which the Court held adequate because the expert “based his opinion on conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.” (Ibid.)
Here, Perez testified that he based his opinion on over 10 years of experience in the Southeast Division of the L.A.P.D. (four of which he spent working the gang enforcement detail), his review of law enforcement databases, including gang intelligence files maintained by the L.A.P.D., and “thousands” of contacts, custodial and noncustodial, with members of the Bloods. Further, he personally witnessed D.B. committing robbery, and testified based on court records that two other members of the Bloods had been convicted of attempted murder and robbery. Unlike in Alexander L., where it was “impossible” to assess the reliability of the expert’s testimony, there was more than an adequate foundation to support Perez’s expert testimony. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [the officer’s “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony” that the King Kobras is a criminal street gang].)
Finally, D.B. contends there was insufficient evidence to support the trial court’s finding that he killed Wesley to benefit or further the activities of the Bloods. D.B. points to the absence of evidence showing that Wesley was a member of a rival gang, that Wesley had demonstrated disrespect for the Bloods, or that the shooter used gang signs or gang languages during the shooting.
Again, Perez’s testimony addressed this very issue. He explained how the two gangs had been feuding at the time, and how a violent act committed by a member of the Bloods, especially a member as young as D.B., demonstrated to the Crips and the community at large, the Bloods’ commitment to fighting the Crips and gaining “respect.” Even though Wesley was not affiliated with the Bloods, Perez testified that it did “not matter because the violent act has been committed. It doesn’t matter who the victim is. They know who the suspects were, and that increases their notoriety and that increases their level of respect within the community, within other gangs, within their own gang.” Thus, even though D.B. did not display any gang signs or language when he shot Wesley, the mere act of shooting Wesley in rival territory benefitted the Bloods.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.