Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09WF1123, Lance Jensen, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Moises Aparicio of attempted murder, aggravated assault, and active gang participation, and also found a gang enhancement applied on the first two counts. On appeal, defendant argues the trial court erred in admitting evidence he associated with other gang members and in denying him probation. He also contends the 10-year gang enhancement to his concurrent sentence for aggravated assault must be corrected to a five-year enhancement, which the Attorney General concedes, and he argues Penal Code section 654 required the trial court to stay his sentence for active gang participation. (All further undesignated statutory references are to the Penal Code.) We agree the gang enhancement on count 2 must be reduced to five years and we also conclude that section 654 required a stay. With these modifications, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In May 2009, Christopher Loza waited alone at a bus stop on Beach Boulevard in Westminster. Suddenly, three to five male Hispanics exited a car and rushed towards Loza, screaming “Orphans” and “Fuck West.” Loza, a West Trece gang member, recognized his attackers haled from a rival gang known as the Orphans, and Loza attempted to escape. A passing motorist, Kelly Jones, observed Loza “high-tailing it” away from four pursuers. The young men sprinted through traffic, passing close to her car. Jones proceeded forward, but made an immediate U-turn and approached the fracas, where she saw three assailants hitting and kicking Loza. One attacker appeared to be punching the victim in the sides, but Jones did not see a weapon.
Loza rose, stumbled to a grassy area, and sat down with his feet hanging over the curb. Loza lifted up his shirt, displaying two stab wounds, one at his waist and the other in his chest. Jones advised Loza to remain on the ground while she called the police. Loza repeatedly stated the assailants took his phone and that he needed his phone. Meanwhile, another witness, a motel employee, had observed the attack and recounted at trial seeing three Hispanic men with shaved heads, ages 17 or 18, attacking an individual on the ground. The witness also called 911, and the police soon arrived.
In statements to officers at the scene, Loza denied knowing any of the assailants. But he later admitted to his mother during his four-day hospital stay that “Moises” stabbed him, Moises’s nickname was “Brownie, ” and they attended school together. Loza also admitted to Detective William Drinnin at the hospital that he was “pretty sure” Brownie was the one who stabbed him and that he overheard another attacker say, “Hey, Brownie, let’s go. The job is done.” Reticent at trial, Loza denied knowing defendant or who stabbed him. Loza gave equivocal answers concerning his earlier hospital statements to Drinnin and his mother.
Drinnin testified as a gang expert at trial. He opined defendant was an active member of the Orphans gang at the time of Loza’s stabbing. Drinnin based his opinion on the fact defendant went by a gang moniker (“Brownie”) and admitted in police contacts that he was an Orphans gang member. As additional foundation for his opinion, Drinnin noted regular police contacts with defendant in the company of other Orphans gang members, including Edgar Carrillo and Alonzo Santos. At trial, Jones and Loza identified Carrillo as one of Loza’s attackers in the present incident, and Jones also identified Santos as a third assailant, but neither Carrillo nor Santos faced charges.
II
DISCUSSION
A. Admission of Defendant’s Prior Police Contacts with Other Orphans Members
Defendant contends the trial court abused its discretion in allowing Drinnin to disclose previous police contacts in which officers found defendant in company with Carrillo and Santos. Drinnin did not reveal the nature of the contacts, but defendant argues the bare mention of these contacts was not relevant and only served to invite a finding of guilt by association, based on the fallacy that because he was with Carrillo and Santos on other occasions, he accompanied and aided them in the present attack. We are not persuaded.
The trial court reasonably could conclude the prior contacts were admissible as foundation to support Drinnin’s opinion defendant was an active Orphans gang member, given the police regularly found him in the company of other active Orphans gang members. At the outset, we note defendant failed to object to Drinnin’s reliance on prior contacts involving Santos, and this aspect of the claim of error is therefore forfeited on appeal. (Evid. Code § 353; People v. Lint (1960) 182 Cal.App.2d 402, 414.) As to the contacts involving Carrillo, defendant raised his concern of guilt by association and also noted he did not want the expert to blurt out that Carrillo was wanted for various crimes. The prosecutor agreed to omit the details of the prior contacts, and Drinnin revealed none.
One prior incident did not involve a police contact, but rather a victim’s allegation that Carrillo raped her in 2008 and defendant served as Carrillo’s lookout. (Cf. People v. Albillar (2010) 51 Cal.4th 47, 56 (Albillar) [rape in concert may constitute a gang-related crime].)
The trial court’s decision overruling defendant’s objection furnishes no basis for reversal. As noted, defendant’s regular association with other active Orphans members had some tendency in reason to suggest he remained an active Orphans member. (Evid. Code, § 210 [defining relevant evidence as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].) Evidence is relevant if it tends to establish a fact from which the existence or nonexistence of the fact in issue can be directly inferred. (Firlotte v. Jessee (1946) 76 Cal.App.2d 207, 210.) Defendant did not assert admission of the evidence was more prejudicial than probative under Evidence Code section 352.
But even assuming arguendo the trial court erred in any conceivable fashion, the ruling was harmless for several reasons. First, it is unlikely the jury would have reached a different conclusion concerning defendant’s active gang participation absent the evidence he associated with Carrillo. (See People v. Watson (1956) 46 Cal.2d 818, 836.) To the contrary, defendant admitted to police he was an Orphans gang member, an admission corroborated by his use of a gang moniker.
Second, defendant’s specific concern that the jury would rely on guilt by association to establish his identity as one of Loza’s attackers was obviated in closing argument. Specifically, the prosecutor clarified the jury could not conclude that because defendant had been with Carrillo in the past, he was with Carrillo during the stabbing. Rather, the prosecutor emphasized that Loza identified defendant in the hospital, both to his mother and Drinnin. If defendant now believes the trial court should have provided an instruction limiting use of his association with Carrillo and Santos to the question of his active gang participation, rather than the identity of Loza’s attacker, his failure to request the instruction forfeits the issue. (People v. Farley (1996) 45 Cal.App.4th 1697, 1711.) Consequently, there is no basis for reversal on evidentiary grounds.
B. Probation Eligibility
Defendant challenges the trial court’s implicit denial of probation, characterizing the imposition of a prison term as a failure to exercise informed sentencing discretion. Specifically, defendant asserts the trial court erroneously relied on the probation officer’s report concluding defendant was unsuitable for probation under section 1203, subdivision (e)(2), because he used a deadly weapon during the commission of the offenses. The prosecutor, however, had argued defendant was guilty of attempted murder either as a direct perpetrator or as an aider and abettor, and neither the jury nor the trial court made any express finding defendant personally stabbed Loza. Because defendant assumes the trial court relied on the probation officer’s personal use conclusion, defendant asserts we must remand the matter for resentencing. We disagree.
On appeal, we must presume the trial court understood its discretion and elected to sentence defendant to prison instead of granting probation. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Additionally, defendant’s failure to address the probation report below forfeits his appellate challenge. (People v. Scott (1994) 9 Cal.4th 331, 353 [“counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing, ” to “reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them”].) In any event, remand for resentencing is unwarranted because it is not reasonably likely the trial court would order probation instead of imposing a prison term. The trial court sentenced defendant to more than 17 years in prison. Troubled by defendant’s progressive violence from using a BB gun in a robbery at age 13 to the present offense, “one stab away from killing the victim, ” the trial court found a lengthy sentence necessary to punish a “hunter... who victimized others.” The trial court expressly discounted the sincerity of defendant’s remorseful letter, pointing out that it contradicted defendant’s statements to the probation officer. On this record, the likelihood of transforming the trial court’s prison sentence to a probation grant is nil, and defendant’s challenge therefore fails.
C. 10-Year Enhancement for Assault Conviction
Defendant and the Attorney General agree that the 10-year gang enhancement on defendant’s aggravated assault conviction (count 2) must be reversed. Under section 186.22, subdivision (b)(1)(C), the 10-year gang enhancement applies solely to specified “violent” felonies defined in section 667.5, subdivision (c), which does not include assault with a deadly weapon. Instead, the five-year enhancement for “serious” felonies applies. (§§ 186.22, subd. (b)(1)(B); 1192.7, subd. (c).) Reversal, however, is not required; instead, we exercise our discretion to correct defendant’s sentence (§ 1260) to reflect the applicable five-year enhancement term on count two.
D. Section 654 Requires a Stay on the Active Gang Participation Count
Defendant contends the trial court erred by failing to stay under section 654 the eight-month term it imposed for active gang participation (count 4). We agree.
Section 654 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.” (§ 654, subd. (a), italics added.)
As the Supreme Court explained in Neal v. State of California (1960) 55 Cal.2d 11 (Neal), under the plain terms of section 654, “‘If only a single act is charged as the basis of... multiple convictions, ’... the defendant can be punished only once. [Citation.]” (Id. at p. 19.) Neal also observed that “‘[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....’ [Citation.]” (Neal, at p. 19.) Whether the aggregate 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, at p. 19.)
Thus, in People v. Latimer (1993) 5 Cal.4th 1203, where a jury convicted the defendant of both kidnapping and rape, the Supreme Court explained: “It could be argued that defendant had two intents: (1) to drive the victim against her will to an isolated area, and (2) to rape her. Cases applying the Neal rule, however, make clear that multiple punishment for both the rapes and the kidnapping is prohibited under the circumstances of this case. Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes.” (Id. at p. 1216.)
Section 186.22, subdivision (a), defines and punishes active gang participation as a substantive offense. The elements of the offense are: “(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (Albillar, supra, 51 Cal.4th at p. 56.) The crime thus requires as one of its elements the intentional commission of an underlying offense. Given this overlap between the gang participation offense and an underlying offense, the court in People v. Sanchez (2009) 179 Cal.App.4th 1297 (Sanchez) concluded “it makes no sense to say the defendant had a different intent and objective in committing the crime of gang participation than he did in committing the [underlying] robberies.” (Id. at p. 1315.)
Resisting Sanchez’s focus on the overlap of elements as dispositive, the Attorney General relies on Neal and Latimore to suggest two separate intents may be discerned in defendant’s assault on and attempt to murder Loza: one objective included beating and stabbing Loza with the intent to kill him and, noting defendant and his cohorts yelled “Orphans” and “fuck west, ” the Attorney General argues defendant’s conduct also reflected “the separate and distinct intent to commit street terrorism.” It is true as noted above in Latimer that in cases involving a course of conduct, the analytical focus under section 654 does not turn on comparing the elements of the charged offenses; rather, it is on the particular defendant’s actual intent and objective.
But there are two problems with the Attorney General’s approach here. First, although defendant’s intent and objective can be parsed into an intent to promote his gang and an intent to kill, those intents were not independent: each intent was dependent on, and incidental to, the other. (People v. Vu (2006) 143 Cal.App.4th 1009, 1034.) As noted in Sanchez, “Section 654 bars multiple punishment even if the defendant has ‘“multiple criminal objectives, ”’ as long as those objectives were not ‘independent’ but ‘merely incidental to each other....’” (Sanchez, supra, 179 Cal.App.4th at p. 1314.) Thus, it seems inescapable here that defendant’s intent to kill was purely incidental to his intent to aid his gang. (Cf. ibid.) This is particularly true given the jury expressly found defendant committed the underlying crimes of attempted murder and aggravated assault for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) The jury thus determined defendant held a gang-related intent and objective in committing the underlying crimes. The evidence suggests no independent or personal, nongang-related reason for defendant to assault or attempt to kill Loza in a random attack.
Second, and more fundamentally, the predicate for the Attorney General’s reliance on the intent and objective test is missing. The Attorney General never suggests defendant engaged in a course of conduct as in Neal or Latimore, but instead attempts to divine plural intents in defendant’s single, murderous attack on Loza. “Insofar as a single act is charged as the basis for the conviction..., the defendant can only be punished once.” (Neal, supra, 55 Cal.2d at p. 19.) Therefore, section 654 precluded separate punishment. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135 [the trial court may impose sentence for only the offense carrying the longer punishment].)
III
Disposition
The judgment is modified (§ 1260) to strike and correct the 10-year gang enhancement for aggravated assault (count 2) to a five-year enhancement (§§ 186.22, subd. (b)(1)(B), 1192.7, subd. (c)), and to stay the sentence for active gang participation (count 4) under section 654. The trial court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: MOORE, ACTING P.J., IKOLA, J.