Opinion
G057189
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS BAUTISTA, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NF1915) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part and remanded for resentencing. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Juan Carlos Bautista of three counts of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a); counts 1, 2, and 3), one count of attempted carjacking (§§ 664, subd. (a), 215, subd. (a); count 4), three counts of assault with a semi-automatic firearm (§ 245, subd. (b); counts 5, 6, and 7), one count of shooting at an occupied vehicle (§ 246; count 8), three counts of shooting at unoccupied vehicles (§ 247, subd. (b); counts 9, 10, 11), and three counts of discharging a firearm with gross negligence (§ 246.3, subd. (a); counts 13, 14, and 15). The jury also found true allegations that counts 1 through 8 were committed for the benefit of a criminal street gang and that defendant personally used a firearm. (§§ 186.22, subd. (b)(1), 12022.5, subd. (a).) The jury further found true allegations that defendant personally used and discharged a firearm in the commission of counts 1 through 4. (§ 12022.53, subds. (b)-(c).) Finally, the jury found true allegations the defendant personally used a firearm in the commission of counts 13 through 15. (§§ 1192.7, subd. (c)(8), 667.)
All further statutory references are to the Penal Code.
The court granted the People's motion to dismiss one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 12). To avoid confusion, we refer to the counts as they were alleged and enumerated in the information.
The court sentenced defendant to an aggregate determinate term of 36 years 6 months in state prison as follows: (1) 4 years 6 months (half the upper term of nine years) on count 4; (2) 20 years for the firearm use enhancement on count 4 (§ 12022.53, subd. (c)); (3) 10 years for the gang enhancement on count 4 (§ 186.22, subd. (b)(1)(C)); (4) 10 years each for the additional firearm enhancements on count 4, which were stayed pursuant to section 654; (5) eight months each (one-third the middle term of two years) on counts 9, 10, and 11; and (6) eight months each (one-third the middle term of two years) on counts 13, 14, and 15, which were stayed pursuant to section 654.
The court also sentenced defendant to an aggregative consecutive indeterminate term of 70 years to life as follows: (1) life in prison on count 1, plus 20 years for the firearm use enhancement and 15 years for the gang enhancement (§§ 12022.53, subd. (c), 186.22, subd. (b)(1)); (2) a consecutive life term on count 2, plus 20 years for the firearm use enhancement and 15 years for the gang enhancement (§§ 12022.53, subd. (c), 186.22, subd. (b)(1)); (3) a concurrent life term on count 3, plus 20 years for the firearm use enhancement and 15 years for the gang enhancement (§§ 12022.53, subd. (c), 186.22, subd. (b)(1)); (4) 10 years each for the additional firearm enhancements on counts 1, 2, and 3, which were stayed pursuant to section 654; (5) nine years, plus 10 years for the firearm use enhancement and 5 years for the gang enhancement on each of counts 5, 6, and 7, which were stayed pursuant to section 654; and (6) seven years, plus 15 years to life for the gang enhancement and 10 years for the firearm use enhancement on count 8, which were stayed pursuant to section 654.
Defendant raises five issues on appeal. First, he contends the court improperly instructed the jury that it should consider premeditation and deliberation only once as opposed to three times for counts 1, 2, and 3 (attempted premeditated murder). Second, he claims the court erred by failing to give a unanimity instruction on counts 13, 14, and 15 (discharging a firearm with gross negligence). Third, he argues there was insufficient evidence to support the gang enhancements. Fourth, he contends the court erred by imposing 15-year gang enhancements on the attempted murder counts instead of requiring a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5). Finally, defendant claims the court erred by imposing both firearm and gang enhancements on count 4 (attempted carjacking). We agree with defendant's fourth contention and strike the 15-year gang enhancements on counts 1, 2, and 3. We otherwise disagree with defendant's remaining contentions and, accordingly, we affirm the judgment in all other respects.
FACTS
The Incident
One evening in July 2017, Jose M. was sitting in his car near Willow Park in Anaheim. After he saw defendant attempt to open the doors of other cars, he rolled up his windows, locked the door, and put the key in the ignition. Defendant approached Jose M. and asked for the time. When Jose M. answered, defendant said, "Get out. You're fucked up." Jose M. responded, "Why?" Defendant then pulled out a gun, pointed it at Jose M., and said, "This is my neighborhood." Jose M. started to drive away and inadvertently hit defendant with the car. Defendant then shot and hit the window of the car. As Jose M. drove off, defendant continued to shoot at him.
On the same night, Gabriel Q. and his coworker were eating pizza at Willow Park. They heard gunshots from "the left of" them and then saw defendant running toward them. After they noticed defendant was holding a gun, they started running. As they ran away, they heard four gunshots.
Police officers arrived and searched the area. They found shell casings near the bench where Gabriel Q. and his coworker had been eating. They also recovered a bullet and shell casing from Jose M.'s car as well as bullets from a white minivan belonging to Maria L., a white van belonging to Victor R., and a black truck belonging to Benigno B.
A few days later, defendant called the police, admitted to being the shooter at the park, and said the gun was at his mother's house. He said he was "paranoid" and thought people were watching him. He also said one of the cars may have had a person inside and that he shot at the car because somebody was trying to hurt him. When police arrived at defendant's apartment, defendant detailed the shootings at Willow Park and further admitted shooting at parked cars on the street, including two white vans and a black van.
Gang Evidence
When talking to the police, defendant said he was a member of the Boys from the Hood criminal street gang and that his moniker was "Bones." He claimed to have shot at two men sitting on the park benches because they looked like gang members.
In an interview with Officer Joie Tinajero, an investigator assigned to the Boys from the Hood gang, defendant said he shot at the parked cars because he believed someone was going to kidnap him. Defendant said he asked Jose M., "[W]here you from?" Although he initially denied shooting at Jose M., he later admitted firing one shot at him. He also said he hit up some "gang bangers" by asking them, "[W]here you from?" Defendant said he did this because he was "gang banging" and representing Boys from the Hood. After the men ran, defendant shot at them while yelling, "Boys."
At trial, Tinajero testified defendant knew how to flash the sign for the Boys from the Hood gang and knew of an area where gang members hung out, but he could not name the specific streets. Defendant also did not know the sub-cliques within the gang or who had jumped him into the gang. Tinajero testified, "I felt he did not know a lot of the common information that most Boys from the Hood gang members should know, yes." Although Tinajero knew most of the gang members, he had never heard of defendant. He asked defendant why he was claiming gang membership and warned him that he could get beaten up when he was in custody. Tinajero further testified defendant had no field interview cards associating him with a gang and he was not aware of defendant having any gang tattoos. Finally, he testified the shootings occurred in the territory of West Side Anaheim gang, a rival to Boys from the Hood.
Investigator Nancy Lopez testified she searched for defendant's name and moniker online. She found a social media profile for "Bones Bautista" with pictures of defendant on it. Some pictures depicted defendant displaying Boys from the Hood gang signs.
Investigator Lucy Hernandez testified she found another social media profile for "BFTH Bones." The profile suggested the person lived in North Hollywood and included a picture of a person with "BFTH" tattooed across his stomach. Hernandez was not aware of defendant having this tattoo.
Sergeant Jeff Mundy testified about a 2007 incident in which defendant had been stabbed by a member of the West Side Anaheim gang. Defendant told Mundy he had confronted someone who stole his brother's bicycle. He said he got into a fight and was stabbed by the gang member.
The People's gang expert, Officer Kevin Avila, testified about Boys from the Hood. Among other things, he explained the gang is a Hispanic gang located in Anaheim and their primary activities include car theft and robberies. He testified their rivals include the West Side Anaheim gang. He believed defendant was a member of Boys from the Hood on the day of the incident. Avila based this opinion on defendant's own admission that he was a gang member, defendant's social media posts, and his statement to one of the victims that "This is my neighborhood." Based on a hypothetical constructed from the facts of the instant case, Avila also opined the offenses were committed for the benefit of a criminal street gang because the shootings "could instill fear in people in that community as well as gang members from that gang."
DISCUSSION
Defendant contends the court committed several instructional errors. He also claims there was insufficient evidence to support the gang enhancements. He further argues the court made sentencing errors regarding the gang enhancements on counts 1, 2, 3, and 4. For the reasons stated below, we agree the court erred by imposing 15-year gang enhancements in addition to the indeterminate terms of life with the possibility of parole on counts 1 through 3. We disagree with defendant's remaining contentions and affirm the judgment in all other respects. The court did not provide erroneous instructions on the attempted murder counts.
Defendant claims the court erred by instructing the jury it only needed to consider premeditation and deliberation once instead of three times for each of the attempted murder counts. But defendant did not challenge the relevant instruction (CALCRIM No. 601) in the trial court proceedings. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [party forfeits challenge to instructions that correctly state the law even if the instructions are misleading in the particular case].) We nevertheless address the merits because defendant contends the alleged error violated his constitutional rights. We accordingly do not address defendant's alternative contention that his trial counsel rendered ineffective assistance by failing to request a proper version of the instruction. The court did not err; it provided the appropriate instruction.
"We review defendant's claims of instructional error de novo." (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756.) Where reasonably possible, we interpret the instructions to support the judgment rather than defeat it. (Ramos, at p. 1088.)
Here, the court provided the following CALCRIM No. 601 instruction: "If you find the defendant guilty of attempted murder under Count 1, 2, and/or 3 you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation."
Defendant argues this improperly "instructed the jury that the premeditation analysis was to occur once rather than thrice." According to defendant, the court should have provided three separate versions of CALCRIM No. 601 and tailored each version to each count. Alternatively, he contends the court could have "pluralize[d] the instruction" to say: "If you find the defendant guilty of attempted murder under Counts 1, 2, or 3, you must then decide whether the People have proved the additional allegations associated with each count that the attempted murders were done willfully, and with deliberation and premeditation." By failing to do so, defendant argues "the court quite possibly caused [defendant] to be convicted by a less than unanimous verdict on one [or] more of the premeditation offenses."
Here, the plain language of the court's instruction does not suggest the jury should consider premeditation and deliberation once as opposed to once for each of the three counts. While defendant notes the instruction refers to "the additional allegation" of premeditation and deliberation in the singular form, this makes sense given the instruction's reference to "Count 1, 2, and/or 3." (Italics added.) In other words, if the jury found defendant guilty of only count 1, it would have to consider the additional allegation of premeditation and deliberation for that count.
There is no reasonable likelihood the jury would have misunderstood or misapplied the instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963.) The jury verdict forms given to the jury required the jury to make separate findings of premeditation and deliberation for each count, which the jury did. Another jury instruction regarding mental impairment (CALCRIM No. 3428) indicated, "The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically . . . Premeditation and Deliberation (Counts 1, 2, and 3)." (Italics added.) The jury also was instructed that each count had to be considered separately. Finally, we consider the closing arguments of counsel in determining whether the jury might have misunderstood or misapplied the instructions. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1330.) During closing argument, the People discussed defendant's premeditation and deliberation with respect to each of the three victims.
While defendant contends a question from the jury indicated their confusion regarding the premeditation and deliberation allegation, their question does not support defendant's position. During deliberations, the jury asked the following question: "Judge clarification on Allegation 1 (premeditation) for [¶] Counts 1-3. Is it a 'layer on' to the core count? [¶] i.e., can we conclude intent for core count but 'not true' for premeditation?" The court answered, "Yes." The question and the court's response merely indicate the jury applied the premeditation and deliberation allegation as a "layer" to counts 1, 2, and 3.
Given the entirety of the instruction, the jury's verdicts, and the argument of counsel, it is not reasonably likely that the jury misunderstood or misapplied the court's instruction on the attempted murder counts. Because we conclude the court did not err in its instructions, we need not address whether there was prejudice arising from any instructional error. The court's failure to instruct the jury on unanimity as to counts 13, 14, and 15 was harmless error.
Defendant claims the court should have given a unanimity instruction to the jury on the discharging a firearm with gross negligence charges in counts 13, 14, and 15. According to defendant, the People alleged "11 discrete acts" to support these three counts. Because there were "less counts than acts to support them," defendant contends a unanimity instruction was necessary. Without the instruction, defendant argues "it is impossible to confirm that the jury unanimously convicted [defendant] of the crime; instead a 'patchwork' verdict was possible."
At the outset, we note defendant did not request any unanimity instruction in the trial court proceedings. We nevertheless address the merits because defendant contends the alleged error violated his constitutional rights and further argues the court was required sua sponte to provide the instruction. Even if we assume the instruction was necessary, any error was harmless.
In a criminal case, "the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Ibid.) A unanimity instruction typically includes something along these lines: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed." (CALCRIM No. 3500.)
Here, defendant notes the People introduced evidence of 11 acts that could have constituted grossly negligent conduct: (1) "Firing at the window [of] Jose's car while Jose occupied it"; (2) "Firing at the back of Jose's car while Jose sped away"; (3) "Firing at Gabriel as he later fled the park bench"; (4) "Firing at [Gabriel's coworker] as he later fled the park bench"; (5) "Firing at Victor [R.'s] Chevy cargo van such that he found glass and bullets in his car"; (6) "Firing at Beningo B.'s [sic] Ford F-150 such that it damaged the window and a seat belt"; (7) "Firing at Maria L.'s Toyota Sienna, which damaged the window of the Sienna"; (8) "Firing in the vicinity of Danna E.'s house such that a single gunshot or perhaps as many as four gunshots woke her from her sleep"; (9) "Firing at a 1992 AstroVan"; (10) "Firing at a black caravan"; and (11) "Firing at a white caravan." According to defendant, the jury could have relied on some of these acts by finding some of the shots were negligently fired while others were not.
The People disagree and contend it made an election during closing argument specifying that the acts constituting the charges in counts 13, 14, and 15 were the same acts constituting the charges in counts 9, 10, and 11. Counts 9, 10, and 11 involved the shooting of unoccupied vehicles belonging to Victor R., Benigno B., and Maria L. The People accordingly argue a unanimity instruction was unnecessary.
Based on our review of the record, it is not clear the People explicitly articulated the acts upon which counts 13, 14, and 15 were based. During closing argument, the People first discussed counts 9 through 11 and generally argued defendant shot at unoccupied vehicles. The People referred to "the two white vans and the black truck" but did not name the owners of those cars, Victor R., Benigno B., and Maria L. The People next discussed counts 13 through 15 and argued: "[Y]ou heard from the testimony that the location that those vehicles were in were on public streets, residential areas, where you have families living. You have homes, apartments, houses. Two of the witnesses testified that they were only a couple houses down from where the incident occurred, the shooting into the vehicles. We all know that based on the testimony and the photos that you've seen and that you will see when you get into the jury room that bullets cause a lot of damage. Okay. Bullets went through metal, went through glass, car seats, car bumpers. Bullets bounce off things. We are fortunate in this case that a bullet didn't bounce off those things and contact a home or a residence out in the general public." The People later argued: "Again, the defendant admitted to shooting into these vehicles. When you look at the damage to the vehicles, you'll see where the bullets entered. In regards to Victor R.'s vehicle, the Chevy van, you'll see that on the passenger side of the vehicle the bullet exited on that side. That's the side of the sidewalk. That bullet could have traveled anywhere."
While it is reasonable to interpret the People's arguments on counts 13 through 15 to be based on the same shootings involved in counts 9 through 11, it is not clear that the People were referring to the same cars in all of these counts. There also was evidence at trial regarding defendant's shots at Jose M.'s vehicle. "If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.) The People's closing argument did not clearly communicate such an election.
The court's failure to provide a unanimity instruction was nevertheless harmless, whether considered under the Chapman v. California (1967) 386 U.S. 18, 24 standard or the People v. Watson (1956) 46 Cal.2d 818, 836 standard. Defendant admitted to the police that he shot at various people and cars. During closing argument, defendant's counsel also conceded, "Discharging of a weapon, that's pretty easy. Doesn't call for a specific intent. Reckless discharge of a weapon, those are all pretty simple. We have evidence that those things occurred. We have evidence, other than what [defendant] said, that those things occurred. What we're looking for is enough evidence . . . to convict [defendant] beyond a reasonable doubt of the other offenses." Given these admissions, there is no cause for reversal. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1590 [finding no prejudice from the lack of a unanimity instruction where the defendant confessed to more offenses than he was convicted]; People v. Parsons (1984) 156 Cal.App.3d 1165, 1174 [failure to provide unanimity instruction was harmless where "appellant was unable to proffer any defense, but merely put the People to their proof"].) Substantial evidence supports the jury's true findings on the gang enhancements, but the enhancements imposing an additional 15-year term on counts 1, 2, and 3 must nevertheless be stricken.
The jury found the gang enhancements under section 186.22, subdivision (b) true as to counts 1 through 8. Defendant contends there was no evidence he committed the offenses "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." According to defendant, he "was not a gang member and was out on a solo mission, perhaps driven by mental illness." Defendant accordingly requests we strike the gang enhancements on counts 1 through 8. Defendant also argues, and the People agree, that the court erred by imposing the 15-year gang enhancements on counts 1, 2, and 3 instead of requiring a 15-year minimum parole eligibility period for the life terms under section 186.22, subdivision (b)(5). We conclude the gang enhancements were supported by substantial evidence, but as to counts 1, 2, and 3, the enhancement results in a 15-year minimum parole eligibility period on the life terms rather than an additional term of 15 years.
A. Applicable Law and Standard of Review
Section 186.22 enhances the sentence 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 . . . ." (Id., subd. (b)(1).) "In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
B. Substantial Evidence Supports the Gang Enhancements
The first prong—i.e., that the defendant committed the applicable offense for the benefit of, at the direction of, or in association with a criminal street gang—"requires proof that the defendant commit[ted] a gang-related crime." (People v. Albillar, supra, 51 Cal.4th at p. 67.) "There is rarely direct evidence that a crime was committed for the benefit of a gang." (People v. Miranda (2011) 192 Cal.App.4th 398, 411.) Thus, "'[e]xpert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support [a] gang enhancement." (People v. Vang (2011) 52 Cal.4th 1038, 1048; see Albillar, at p. 63 ["Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[ ] criminal street gang'"].)
Here, a reasonable jury could have found defendant was a member of the gang, Boys from the Hood, and that his shootings were gang related. Defendant admitted his gang membership to police, identified his moniker as "Bones," and had a social media profile with pictures displaying the gang's hand sign. The shootings took place in territory claimed by a rival gang, and defendant told officers he shot at two men sitting on the park bench because they looked like gang members. Defendant said he hit up the "gang bangers" by asking them where they were from and yelled "Boys" as they ran away. When he pointed the gun at Jose M., he also said, "This is my neighborhood." He further admitted he was representing Boys from the Hood and "gang banging" at the park. Based on a hypothetical involving identical facts, the People's gang expert testified the crimes were committed for the benefit of a criminal street gang because the shootings "could instill fear in people in that community as well as gang members . . . ." Given this evidence, the jury could reasonably infer defendant's crimes were gang related and benefitted Boys from the Hood.
Defendant claims there was compelling evidence he was on a "solo mission." He notes he did not know basic information about Boys from the Hood when questioned by the police, did not have gang-related arrests or tattoos, and made various statements to the police, including among other things, that he was "paranoid" and did one of the shootings because he thought someone was watching him. He further notes one officer familiar with Boys from the Hood did not know about defendant, questioned why defendant was claiming gang membership, and asked him about his mental health. Despite this evidence, it is not our role to reweigh the evidence. We may reverse for lack of substantial evidence only if "'upon no hypothesis whatever is there sufficient substantial evidence to support'" the conviction or enhancement. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The evidence also supports the conclusion that defendant intended to promote, further, or assist in criminal conduct by Boys from the Hood gang members. The shootings took place in territory claimed by a rival gang, and defendant admitted he was "gang banging" on behalf of Boys from the Hood. The People's gang expert testified "hit ups" in territory claimed by a rival gang promotes the gang. The expert further opined the offenses were done for the benefit of a criminal street gang by instilling fear in the community and rival gangs. There also was circumstantial evidence of defendant's intent, namely, his statements throughout the shootings, which included "This is my neighborhood" and "Boys." A reasonable jury could conclude from this evidence that defendant had the requisite intent.
Defendant argues the present case is similar to In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) The facts in Frank S. are distinguishable. In Frank S., an officer initiated a traffic stop of a minor because he failed to stop his bicycle at a red light. (Id. at p. 1195.) The minor was carrying a knife, methamphetamine, and a red bandana. (Ibid.) He told the officer he had the weapon for protection against a local gang and later admitted he was affiliated with another gang. (Ibid.) A gang expert testified the minor was an active member of a gang and that his possession of the weapon benefited his gang because he could use the weapon to protect himself and other gang members. (Id. at pp. 1195-1196.)
In finding substantial evidence did not support the specific intent element, the Frank S. court stated: "In the present case, the expert simply informed the judge of her belief of the minor's intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the [gang] since 'it helps provide them protection should they be assaulted by rival gang members.' However, unlike in other cases, the prosecution presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue to establish that possession of the weapon was 'committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .' [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor's statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Frank S., supra, 141 Cal.App.4th at p. 1199.)
Here, on the other hand, the evidence showed defendant admitted he was a member of Boys from the Hood, committed the shootings in territory claimed by a rival gang, and claimed he was representing Boys from the Hood. During the shootings, defendant also said, "This is my neighborhood" and "Boys." Given these facts, the People's gang expert testified the crimes were committed for the benefit of a criminal street gang. This is not, as defendant contends, like the situation presented in Frank S.
C. The Court Nevertheless Erred by Imposing 15-Year Gang Enhancements on Counts 1, 2, and 3
On counts 1, 2, and 3, the court sentenced defendant to life with the possibility of parole. The court also imposed 15-year gang enhancements pursuant to section 186.22, subdivision (b)(1) on each count. Defendant contends, and the People agree, the court erred by imposing the 15-year enhancements instead of requiring a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5). We agree the court erred.
"[S]ection 186.22, subdivision (b) establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1)(C) . . . imposes a 10-year enhancement when such a defendant commits a violent felony. Section 186.22[, subdivision (b)(1)(C)] does not apply, however, where the violent felony is "punishable by imprisonment in the state prison for life." [Citation.] Instead, section 186.22, subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) In the absence of the section 186.22, subdivision (b) gang enhancement, defendant would be eligible for parole on his life terms after seven years. Where the gang enhancement is found true, however, the minimum parole eligibility period is increased to 15 years. (§ 3046, subd. (a).) The enhancement does not impose a determinate term to be served before the indeterminate life term commences.
The court accordingly erred by imposing additional 15-year terms for the gang enhancements on counts 1, 2, and 3. Instead, the court should have noted defendant was ineligible for parole "until a minimum of 15 calendar years have been served." We therefore strike the 15-year enhancements on counts 1, 2, and 3, and direct the court to amend the abstract of judgment to reflect the minimum parole eligibility period of 15 years on counts 1, 2, and 3. The court did not err by imposing the gang and firearm enhancements on count 4.
The court sentenced defendant to 4 years 6 months on count 4 (attempted carjacking), plus 20 years for personally discharging a firearm pursuant to section 12022.53, subdivision (c), and 10 years for the gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). As to the gang enhancement, defendant became eligible for the enhancement under section 186.22, subdivision (b)(1)(C) because the attempted carjacking was committed by violating 12022.53, which qualified as a violent felony. (§§ 186.22, subd. (b)(1)(C) ["If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years"]; 667.5, subd. (c)(22) ["For the purpose of this section, 'violent felony' shall mean" "[a]ny violation of section 12022.53"].) Defendant's firearm use accordingly resulted in enhancements under section 12022.53, subdivision (c) and section 186.22, subdivision (b)(1)(C). Relying on People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez) and section 1170.1, subdivision (f), defendant claims the court could not impose both 20 years for the firearm enhancement and 10 years for the gang enhancement.
Defendant's reliance on Rodriguez is misplaced. In Rodriguez, the defendant was convicted of three counts of assault with a firearm. (Rodriguez, supra, 47 Cal.4th at p. 504.) The jury also found true allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) and that the assault was a violent felony committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). (Rodriguez, at p. 504.) The trial court imposed consecutive terms for the firearm and violent felony gang enhancements. (Id. at p. 506.) Our Supreme Court held the trial court erred in light of section 1170.1, subdivision (f), which provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury." (Rodriguez, at p. 508, italics omitted.)
The Rodriguez court explained: "The additional punishments . . . imposed under section 12022.5's subdivision (a) for defendant's personal use of a firearm in each of the three assaults were, in the words of section 1170.1's subdivision (f), punishments 'for . . . using . . . a firearm in the commission of a single offense.' The additional punishments . . . under section 186.22's subdivision (b)(1)(C), the criminal street gang provision, were likewise based on defendant's firearm use. Because two different sentence enhancements were imposed for defendant's firearm use in each crime, section 1170.1's subdivision (f) requires that 'only the greatest of those enhancements' be imposed." (Rodriguez, supra, 47 Cal.4th at pp. 508-509.)
As the People correctly note, Rodriguez is distinguishable because it addressed a firearm enhancement under section 12022.5, subdivision (a) but not the firearm enhancement at issue in this case—section 12022.53, subdivision (c). In People v. Robinson (2012) 208 Cal.App.4th 232, the court held the trial court erred by following Rodriguez and imposing a 10-year firearm enhancement under section 12022.53, subdivision (b) while staying a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C). (Robinson, at pp. 255-261.) The court explained both enhancements were expressly authorized by section 12022.53, subdivision (e)(2) (Robinson, at p. 261), which provides: "An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." (§ 12022.53, subd.(e)(2).) In reaching this conclusion, the court found section 12022.53, subdivision (e) conflicted with section 1170.1, subdivision (f). (Robinson, at p. 258.) Because section 12022.53, subdivision (e) specifically addresses the gang and firearm use enhancements, while section 1170.1, subdivision (f) generally addresses firearm use enhancements, the court held the specific statute controls. (Robinson, at pp. 255-261.)
We agree with the reasoning in Robinson. In light of section 12022.53, subdivision (e), the court did not err by imposing both the firearm enhancement under section 12022.53, subdivision (c) and the gang enhancement under section 186.22, subdivision (b)(1)(C). Defendant seems to agree with our conclusion, stating in his reply brief that "[i]t appears [the People] may be correct" in its reliance on Robinson.
DISPOSITION
The judgment is reversed in part by striking the 15-year gang enhancements imposed pursuant to section 186.22, subdivision (b)(1) on counts 1, 2, and 3. Because the court made other discretionary sentencing choices, the matter is remanded for resentencing without those gang enhancements. The judgment is otherwise affirmed.
IKOLA, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.