Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA064362, Charles D. Sheldon, Judge. Affirmed as modified.
Murray A. Rosenberg, 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, Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
A jury convicted defendant Jonathan Manuel Avila of attempted willful, deliberate and premeditated murder (§ 664/187, subd. (a)), mayhem (§ 203), and assault with a firearm (§ 245, subd. (a)(2)). Andre D. was the victim of the three crimes. The jury found the crimes were committed for the benefit of a street gang. (§ 186.22, subd. (b)(1).) The jury also found true multiple enhancements relating to use and discharge of a firearm (§ 12022.53) and infliction of great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced defendant to an aggregate term of 44 years to life.
All statutory references are to the Penal Code.
Defendant’s primary appellate contention is that the evidence is insufficient to sustain the “for the benefit of a street gang” enhancement. He relies entirely upon the Ninth Circuit’s divided opinion in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia). In People v. Romero (2006) 140 Cal.App.4th 15 (Romero), we declined to follow Garcia, concluding that it incorrectly interpreted section 186.22, subdivision (b)(1) to require a showing that the defendant intended to promote or assist criminal conduct other than the charged crime(s). We adhere to our Romero analysis and find that substantial evidence supports the jury’s enhancement finding.
Defendant also raises a claim of sentencing error (failure to stay execution of sentence pursuant to § 654) which the Attorney General concedes. We shall modify the judgment to correct that error as well as a minor clerical error noted by the Attorney General. As so modified, we shall affirm the judgment.
STATEMENT OF FACTS
As mandated by the traditional rule of appellate review, we recite the facts in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The victim, 13-year-old Andre D. is African-American. He is not affiliated with any gang. Defendant was a member and his accomplice Lawrence “Larry” Flores was an associate of the primarily Hispanic Eastside Longos gang. The Eastside Longos operate in Long Beach, including the area in which Andre D. was shot. The Eastside Longos has a 16-year history of initiating violence with The Crips, a gang made up primarily of African Americans.
The crimes were committed on January 21, 2005 as Andre D. walked home. Defendant and Flores approached Andre D. Flores asked Andre D. where he was from. Andre D. interpreted the question as an inquiry about gang membership. He responded that he “didn’t gang bang.” Flores, who was two to three feet away from Andre D., pulled out a gun, pointed it at him, and pulled the trigger. The gun jammed and did not fire. Defendant said to Flores: “Come on.” Andre D. ran from the scene as defendant shot at him several times. One bullet shot out Andre D.’s left eye. Urban and Joyce Showe witnessed the shooting and contacted the police.
The police arrived at the scene within minutes. Urban Showe described defendant and said he had run down the alley. Long Beach Police Officer Shea Robertson quickly located defendant who unsuccessfully tried to elude apprehension. The officer recovered a .38 revolver from the alley, the weapon used to shoot Andre D. The police soon apprehended Flores after defendant told them he was hiding in a nearby garage.
Flores was convicted in a separate proceeding conducted before defendant’s trial. Flores’ counsel informed the court that Flores would invoke the privilege against self-incrimination if called by either party as a witness in defendant’s trial. The court submitted CALCRIM No. 373 (“Other Perpetrators”) to the jury.
At the scene, Urban Showe identified defendant as the individual who shot Andre D. After being advised of and waiving his Miranda rights, defendant first falsely told the police that Andre D. had verbally initiated the confrontation with a gang related taunt. Defendant admitted that he was a member of the Eastside Longos. Later that day, defendant confessed. He told Officer Robertson: “Fuck it. I did it. I will do the time.” Defendant consented to a search of his home where the police recovered a notebook labeled “Longos Eastside No. 1 ” and other gang related paraphernalia.
Meanwhile, Detective Todd Johnson told Flores that he intended to transport him for a showup to the hospital where Andre D. was being treated. Flores replied: “He’s going to know my face. . . . I was involved in the shooting tonight.” Flores proceeded to tell the detective about the shooting. Flores told several versions of the events, in all of which defendant fired the gun. In each succeeding version, Flores admitted more about his own involvement. Ultimately, he told the detective the following. That evening, defendant had obtained a gun which he gave to Flores because he (Flores) “was being jumped into a gang, Eastside Longos.” Flores was to earn his status in the gang by shooting a member of the rival Insane Crips gang. Once on the street, defendant and Flores saw Andre D. whom Flores “knew” was an Insane Crip. Flores chased after Andre D., firing the gun twice. Defendant then grabbed the gun from Flores and chased Andre D. further down the alley, firing three more times.
Defendant’s trial counsel did not object to any of the testimony the prosecutor elicited from the police about Flores’s statements, but, instead, actively sought its admission. Earlier during trial, he told the court that he wanted Flores’ statements admitted into evidence “because they implicate him [Flores] and they explicate [sic] my client.” The prosecutor responded that while Flores’ statements implicated defendant and thus were “helpful to the prosecution,” she believed Crawford v. Washington (2004) 541 U.S. 36 barred the defense from using them because the People would be denied the right to confront and cross-examine the hearsay declarant (Flores) in light of Flores’ intent to invoke the Fifth Amendment. (See fn. 2, ante.) In addition, she was concerned that admission of Flores’ hearsay statements could result in a reversal were defendant convicted. Defense counsel responded that it was his “client’s right to put on a defense and everything that Flores says pretty much implicates himself and then he tries to point at my client. [¶] . . . I do respectfully believe that if the court doesn’t allow it [testimony about Flores’ statements] in, it is reversible error.” Ultimately, the trial court explained that while it recognized the prosecutor’s concern that admission of Flores’ statements “might be a problem on reversible error,” defense counsel had “said that he is doing it for strategic purposes and that he wants it in for that purpose. So I think that kind of covers any error. [¶] . . . I do believe I should admit it on his request when I consider Crawford and its rationale and Truth in Evidence [Cal. Const., art. I, § 28(d)] and things of that nature. That comes from California rather than U.S. Supreme Court. [¶] So if you want to offer testimony regarding the statements of the at one time co-defendant, I will admit them.” Thereafter, Detective Johnson testified about Flores’ statements.
Detective Hector Gutierrez of the Long Beach Police Department testified as a gang expert. In addition to the facts set forth in the first paragraph of our factual statement, he testified that Eastside Longos’ activities included “murders, shootings [and] assault with a deadly weapon.” The gang often initiated fights with the Crips. The detective explained that “[b]eing jumped in to a gang is a process where they bring you into a gang, but it’s an initiation also. [¶] One of the ways they can do it is you will have to go out and commit a violent crime against somebody else or a rival gang.” According to the detective, the notebooks recovered from defendant’s home included gang related contents such as inscriptions evincing Eastside Longos’ hatred of and desire to kill Crips.
DISCUSSION
A. Sufficiency of the Evidence re Gang Enhancement
Section 186.22, subdivision (b)(1) provides for an enhanced punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
Defendant does not contest the sufficiency of the evidence to support any of his convictions. Nor does he claim that the evidence is insufficient to support the jury’s implied findings that Eastside Longos is a criminal street gang within the meaning of section 186.22 or that the three crimes were committed to benefit Eastside Longos. Instead, defendant, relying upon Garcia, supra, 395 F.3d 1099, claims that section 186.22 requires the specific intent “to promote, further or assist in other criminal conduct of the gang apart from the instant conviction.” (Boldface in original.) From that legal premise, he argues that “nothing in the record supports the inference that the crimes were committed by [him] with the specific intent to facilitate other criminal conduct by Eastside Longo members.” (Italics added.) We reject the contention because it is based upon an incorrect interpretation of the statute.
We are not bound by federal authority construing a state statute. (People v. Bradley (1969) 1 Cal.3d 80, 86.) In Romero, supra, 140 Cal.App.4th 15, we explicitly disagreed with Garcia’s interpretation of section 186.22, subdivision (b)(1) and declined to follow it. (Id. at p. 19.) We explained: “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.” (Ibid., italics in original.) Our interpretation of the statute was followed in People v. Hill (2006) 142 Cal.App.4th 770. The Hill court wrote: “There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits.” (Id. at p. 774; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) We adhere to the reasoning found in Romero and Hill.
Here, defendant was a member of the Eastside Longos gang. Flores was an associate of the gang who wished to join it. Defendant participated in the crimes against Andre D., a perceived member of a rival gang, to help induct Flores into the Eastside Longos gang. Because shooting an individual with the intent to promote a gang’s recruitment efforts is itself “criminal conduct by gang members” which the shooter has “the specific intent to promote” (§ 186.22 subd. (b)(1)), the record amply supports the jury’s “true” finding on the enhancement.
B. Sentencing
1. Section 654
The issue is whether section 654 precluded the trial court from sentencing defendant for both the mayhem and attempted murder convictions.
Section 654 prohibits punishment for two offenses arising from the same act. (Neal v. State of California (1960) 55 Cal.2d 11, 18.) “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.” (Id. at p. 19.)
At the sentencing hearing, defense counsel asked the court to impose concurrent terms for the three convictions. He stated: “I believe under 654 they all occur at the same time, same victim, or same act that the court could and should sentence them concurrently.” The prosecutor conceded that the felonious assault (§ 245) and mayhem (§ 203) convictions arose out of the “same transaction” but then claimed that “only 245 merges . . . pursuant to the 654 and the court cannot sentence on the 245.” She argued that “[p]ursuant to 654, the 203 does not merge” because the elements of mayhem “are not identical to the elements of the attempted murder.” Thus, she claimed: “The court has discretion to run it [the sentence on § 203] concurrent or not run it concurrent.” Defense counsel responded that both convictions fell “under 654. They both arise out of the same set of circumstance[s].” He “point[ed] out for the record you don’t necessarily need the same elements for two charges to merge under 654.”
The trial court explained that because of section 654, “there will be no sentence on 245. . . . It merges. [¶] I find as a matter of law[,] my interpretation of law, the mayhem is not 654 of the Penal Code. It is different elements, different crime. Yes, at the same time it occurred and as a result of the shooting that the defendant was found guilty of that, [led] to that.” After imposing sentence on the attempted murder conviction, the trial court stated because the “mayhem did not, in my opinion, legally merge and become 654[,] . . . I am going to impose the mid base term of [a] consecutive” four-year sentence.
The trial court thereafter imposed an aggregate sentence of 44 years to life calculated as follows: (1) an indeterminate term of 15 years to life for the attempted murder conviction; (2) a 25-year to life term for the section 12022.53, subdivision (d) enhancement; and (3) a four-year term for the mayhem conviction. Pursuant to section 654, the trial court stayed imposition of sentence on the assault conviction.
Defendant contends that “the trial court committed error in the law it relied upon in failing to stay [his] sentence on [mayhem] under section 654.” He further argues that the record does not support any implied finding “that he had a separate intent and objective with respect” to the attempted murder and mayhem convictions because both crimes “were part and parcel of one objective; to kill [Andre D.].” The Attorney General does not disagree with these points. He observes that the trial court, instead of analyzing (as it should have) whether defendant had separate and independent intents in committing the attempted murder and mayhem, incorrectly focused on whether the mayhem was a lesser included offense of attempted murder and whether mayhem merged into the attempted murder. Significantly, the Attorney General concedes “there does not appear to be substantial evidence that would have supported [an implied] finding of separate and independent intents” for the two crimes. The concession is well-taken given that the two convictions arose from a single attack on one victim.
“Where section 654 precludes multiple punishment and the trial court erroneously fails to stay the terms subject to section 654, the appellate court must stay the sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court.” (People v. Thompson (1989) 209 Cal.App.3d 1075, 1080.) Accordingly, we shall stay the four-year sentence imposed on the mayhem conviction, the stay to become permanent upon completion of the remainder of the sentence.
2. Section 12022.53 Enhancement
At the sentencing hearing, the trial court stated that because the jury found true the multiple enhancements alleged under section 12022.53, it intended to impose the consecutive term of 25 years to life provided by subdivision (d) of that statute. However, the Attorney General points out that the abstract of judgment inaccurately records the enhancement as being imposed under subdivision (b) of the statute which requires only a consecutive 10-year term. This is clearly a clerical error. The trial court stated its intent to sentence pursuant to subdivision (d); the trial court’s oral pronouncement of judgment includes a term of 25 years to life for the enhancement; and the abstract of judgment correctly reflects a sentence of 25 years to life for the enhancement, albeit under subdivision (b), not (d). Defendant’s reply brief does not respond to this point. We shall direct the trial court to correct this clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186, 188.)
DISPOSITION
The judgment is modified to stay execution of the four-year sentence imposed on count 3 (§ 203), the stay to become permanent upon completion of the remainder of the sentence. The trial court is directed to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting this modification and indicating that the enhancement of 25 years to life was imposed pursuant to subdivision (d) of section 12022.53. As so modified, the judgment is affirmed.
We concur: MANELLA, J. SUZUKAWA, J.
In closing argument, defense counsel urged there was a reasonable doubt as to his client’s guilt. He claimed that Flores was the only shooter and that Flores had falsely implicated defendant in an effort to shift responsibility from himself. Counsel attacked the credibility of Flores’ statements identifying defendant as the shooter, noting that Flores had told the police different versions of what had happened.