Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. E042845, Brian S. McCarville, Judge. Reversed and remanded with instructions.
McINTYRE, J.
A jury convicted Dequinte Terrell Booker of, among other things, the attempted murder of Albert Valdez. Booker claims the court improperly denied his Wheeler/Batson motion because he made a prima facie showing that the prosecution wrongfully excluded the two African-Americans from the jury panel. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 165 (Johnson); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).) He also asserts the trial court improperly admitted inadmissible hearsay evidence to prove his gang membership and failed to conduct a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) before his sentencing. Finally, he asserts the court committed sentencing errors on two counts.
The People concede, and we agree, that the trial court should have held a posttrial Marsden hearing and that the trial court committed several sentencing errors. We reject Booker's remaining contentions and reverse Booker's judgment for the sole purpose of allowing him the opportunity to file a new trial motion should he articulate a colorable claim of ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in the light most favorable to the judgment, the evidence was as follows:
At about 1:00 a.m. on February 2, 2005, Darlene Gasca and Albert Valdez, Jr. were walking down 9th Street in San Bernardino toward Gasca's home. The IE Projects, an African-American criminal street gang, claimed the area as part of their territory. Gasca and Valdez saw a group of Black men and heard someone yell: "Who's that?" or "Who are you?"
Valdez described the person who spoke to them as a Black man in dark clothing. Valdez replied "who are you," turned and walked away, and then heard gunshots. Valdez hid behind a car, and then got shot in the leg and chest after he got up to knock on the door of a house. Gasca heard the gunshots, but did not see the shooter.
An information charged Booker with attempted premeditated murder (count 1), two counts of being a felon in possession of a firearm (counts 2 and 3), possession of cocaine base (count 4), possession of a controlled substance with a firearm (count 5), participating in a criminal street gang (count 6) and possession of ammunition by a felon (count 7). Count 1 carried various firearm enhancements and counts 1-3 alleged that Booker committed the crimes for the benefit of a criminal street gang. The information also alleged that Booker had suffered a prior serious or violent felony conviction and a prior strike conviction.
At trial, Valdez stated that he did not see the type of gun his assailant fired. He claimed that he did not see the shooter and could not identify Booker, but denied being afraid of identifying Booker. Valdez could not remember picking Booker out of a photographic lineup, but a police officer later testified that Valdez picked out Booker's photograph and claimed he was "pretty sure" that the person in the photograph was the shooter. When the police officer asked Valdez to document his identification by initialing the photograph or circling the number, Valdez refused because he feared retaliation.
Hope Webb, a paid FBI gang informant, lived near 9th Street in San Bernardino and allowed IE Projects gang members to use her home. Webb testified that she has known Booker for a long time, knew he was an IE Projects gang member and that he used the street name "Mook." Before the shooting, Webb was home with Booker and several other people. Webb saw Booker with a handgun and an assault rifle and watched him put bullets inside the gun while wearing gloves. Booker then left with several other people while carrying the assault rifle. Webb heard shooting coming from 9th Street and then saw Booker return to the house all hot and sweaty, like he had been running. Booker put the rifle in a shed outside Webb's home.
Booker left Webb's house and returned the next afternoon to retrieve the rifle from the shed. At some point, Webb heard Booker say, "did you see how he fell when I shot him?" About an hour after the shooting, Webb telephoned her FBI contact, Special Agent James Manzi, and told him in a hysterical voice that Booker had just shot someone near her house with a rifle. Special Agent Manzi considered Webb to be a very reliable informant.
A jury found Booker not guilty of counts 4 and 5, but convicted him of all other counts and found true all the enhancement allegations. The trial court then found that Booker was the person convicted of the prior convictions alleged in the information and the jury found that the priors qualified as a serious felony conviction and a strike. After defense counsel indicated that Booker wanted to file a new trial motion based on ineffective assistance of counsel, the trial court appointed conflicts counsel to investigate a possible motion for a new trial. Conflicts counsel did not file a new trial motion and the trial court sentenced Booker to a total determinate term of 20 years 4 months and a total indeterminate term of 40 years to life in state prison. Booker timely appealed.
DISCUSSION
I. Alleged Wheeler/Batson Error
A. Legal Principles
The use of peremptory challenges to remove a prospective juror because of that juror's race or ethnicity is unconstitutional discrimination. (Batson, supra, 476 U.S. at pp. 86-87; Wheeler, supra, 22 Cal.3d at pp. 276-277.) There are three steps in establishing a Wheeler/Batson claim. First, a defendant must make a prima facie case by showing that the "totality of the relevant facts" gives rise to a discriminatory inference. (Johnson, supra, 545 U.S. at p. 168, quoting Batson, supra, 476 U.S. at p. 94.) If that is done, the People must show race-neutral reasons for the challenge. (Johnson, supra, at p. 168.) If the People meet this burden, the trial court must then decide whether the defendant has proven purposeful discrimination. (Ibid.)
A prosecutor is presumed to have exercised peremptory challenges in a constitutional manner and a defendant bears the burden of making an initial prima facie showing of purposeful discrimination. (People v. Alvarez (1996) 14 Cal.4th 155, 193.) To make this showing, the defendant must demonstrate that the persons excluded are members of a cognizable group (People v. Turner (1994) 8 Cal.4th 137, 164, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5), and produce "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson, supra, 545 U.S. at p. 163.)
Where, as here, the trial court denies a Wheeler/Batson motion on the ground the defendant did not establish a prima facie case of group bias, we consider the entire record of voir dire to determine whether substantial evidence supports the ruling, deferring to the trial court as fact finder, because of its opportunity to observe the participants. (People v. Jenkins (2000) 22 Cal.4th 900, 993-994.) "If the record 'suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question, we affirm. [Citation.]" (People v. Howard (1992) 1 Cal.4th 1132, 1155.)
B. Facts
After determining that all individuals in the jury panel possessed the minimum qualifications to serve on a jury, the court noted that the panel consisted of about 60 people. There is no information in the record regarding the racial composition of the jury panel. The trial court excused individuals with time problems and then randomly selected 12 individuals to sit in the jury box. Prospective Juror No. 29, an African-American woman, was among this first group of individuals to sit in the jury box.
No. 29 disclosed that she had been cited for theft after someone stole her identity. No. 29 had cousins in prison, but believed that her family had been treated fairly. She claimed that gangs did not frighten her because some of her family and friends were gang members and that gang membership did not mean a person was "bad." She knew that San Bernardino had many gangs and claimed that the ethnicity of the victim and the defendant were not important.
Prospective Juror No. 46, an African-American woman, entered the jury box after each side had exercised one peremptory challenge. No. 46 grew up in the area where the shooting occurred and her husband was a drive-by shooting victim about five years ago. She believed the drive-by shooting was gang related because of where it occurred, but claimed that the incident did not impact her ability to be fair because "things happen."
No. 46 acknowledged that gang violence had touched her life, however, she was not angry about the shooting incident and grateful her husband had not been killed. She had no family members in a gang, but was familiar with gangs because of the students that she worked with. She viewed her students as individuals that get "caught up in the circumstances and the environment." She admitted concern about gang retaliation if she were to testify about a drive-by shooting and understood that some witnesses might be reluctant to testify for that reason.
After the People excused No. 29 with its second peremptory and No. 46 with its fifth peremptory, Booker then made a Wheeler/Batson motion claiming prosecutorial discrimination against African-American potential jurors. Booker's counsel observed a "fairly low number" of African-Americans in the jury panel. The court stated that Booker had not challenged the jury panel and noted that No. 13, an African-American woman, remained in the jury box. It found that a Booker had not made a prima facie showing of discrimination and denied the motion because its observations did not reveal a prima facie showing of discrimination. Jury selection continued and the court ultimately swore in No. 13 as a juror.
C. Analysis
Booker contends the trial court erred in finding he had not made a prima facie case of improper racial discrimination during jury selection. He asserts that the prosecutor used two of her first four peremptory challenges (50 percent) to challenge African-American women and that out of nine peremptories, the prosecutor used two (22 percent) to remove African-Americans, even though African-Americans constituted only 10.3 percent of the jurors that made it into the jury box.
Although statistical disparities can raise an inference of discrimination, that inference can be dispelled or reinforced by other relevant circumstances shown by the record. (Johnson, supra, 545 U.S. at p. 168, fn. 4.) Here, although Booker noted a "fairly low number" of African-Americans in the jury panel, the record does not reveal the exact number of African-Americans: (1) in the jury panel; (2) actually seated in the jury box; or (3) remaining on the jury after the court excused Nos. 29 and 46. It is not possible to determine whether the prosecutor's use of peremptory challenges against African-Americans were disproportionate without these numbers. (People v. Farnam (2002) 28 Cal.4th 107, 134-135 [the defendant should first make as complete a record as possible to establish a prima facie case].)
Even assuming No. 13 was the only African-American on the jury and Nos. 29, 46 and 13 were the only African-Americans seated in the jury box, any inference of discrimination is undercut by the fact there was a "fairly low number" of African-Americans in the jury panel. (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 12 (Bonilla) ["a pattern of systematic exclusion... will be difficult to discern when the number of challenges is extremely small"].) Moreover, Booker's reliance on statistics to show discrimination is misleading because it depends on when the prosecutor exercised her challenges, which is based on happenstance. Each party had 20 peremptory challenges. Had the prosecutor used all 20 challenges and used challenge numbers 19 and 20 to remove Nos. 29 and 46, this would have amounted to only two out of 20 strikes (10 percent) to challenge and remove African-Americans. (Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1198 ["If an African-American is the first person called, and thus the first person struck, all (or 100%) of the prosecutor's peremptory challenges will have been exercised against African-Americans," whereas if the same juror is "called at the end of the voir dire, the percentage may be far lower"].) Moreover, the prosecutor did not challenge No. 13, even though she used only 9 of her 20 challenges.
Booker does not claim that the prosecutor conducted only desultory questioning of the potential African-Americans jurors. (Bonilla, supra, 41 Cal.4th at p. 342 [desultory voir dire of most or all of the members of the identified group from the venire can show group bias].) Additionally, the responses given by Nos. 29 and 46 were sufficient to show a reason to challenge them other than race. No. 29 had family and friends that were gang members and No. 46 was familiar with gangs because she worked with students that were gang members. (People v. Watson (2008) 43 Cal.4th 652, 674 ["substantial exposure to gangs" is sufficient "race-neutral reason"]; People v. Cornwell (2005) 37 Cal.4th 50, 69 [circumstance that juror was not subject to exclusion for cause did not support inference that the exercise of a peremptory challenge was motivated by group bias].) Finally, the analysis does not hinge on the prosecution's reasoning behind the peremptory challenges and we decline Booker's invitation to engage in comparative juror analysis. (Bonilla, supra, 41 Cal.4th at p. 350.)
There is substantial evidence to support the trial court's finding that Booker did not make a prima facie showing that the prosecutor challenged Nos. 29 and 46 because of their race. Accordingly, we reject Booker's challenge to the trial court's denial of his Wheeler/Batson motion.
II. Admissibility of the Gang Evidence
A. Facts
Testimony to prove the gang-related charge and the Penal Code section 186.22 gang enhancements against Booker came from Webb, Special Agent Manzi and San Bernardino Police Officers Marco Granado and Scott Murray. (All undesignated statutory references are to the Penal Code.) Although Booker does not challenge the sufficiency of the evidence to prove the gang allegations against him, he claims the court admitted inadmissible evidence and that his counsel provided ineffective assistance when he failed to object to the evidence. Accordingly, we set forth the gang-related evidence in sufficient detail to address these claims.
Webb testified that the IE Projects gang claimed the area where the shooting occurred as their turf and that she had lived in the area most of her life. Although Webb was not an IE Projects gang member, she associated with them and has known IE Projects gang members all her life. Webb allowed IE Projects gang members to use her home to visit and take drugs, and claimed that people would come and go as they pleased. She knew that the IE Projects gang called themselves the "bricks" and that Booker or "Mook" was an IE Projects gang member. Before the shooting, Booker was at Webb's home with other IE Projects gang members.
Officer Granado, a member of the FBI special gang task force, assisted Special Agent Manzi with the investigation surrounding the shooting. Officer Granado testified about gang culture and stated that he kept up on current events in gang culture by contacting gang members and relying on other officers and intelligence documentation of gang members. As to the IE Projects' status as a criminal street gang, Officer Granado testified that, in his opinion, IE Projects members engaged in several of the crimes listed in section 186.22, including, narcotics sales, robberies, carjackings, witness intimidation and assaults, including murders. He offered specific testimony about offenses enumerated in section 186.22 that two IE Projects members committed to support the gang's activities.
Based on his familiarity with the gang and his hundreds of contacts with its members, Officer Granado opined that IE Projects was a criminal street gang. He considered Webb's home as part of the IE Projects' turf because its members congregated there and used the location to store guns and ammunition for gang use. Officer Granado testified that when an IE Projects gang member shoots an individual, the conduct benefits the gang by increasing its status in the community, and that committing a violent crime also increases the status and respect of the gang member within the gang. He testified that the challenge "who are you" or "where are you from" is one of the most significant factors as to whether a crime was gang related, and opined that Valdez's shooting benefited the IE Projects gang based on the gang challenge.
Before Booker's arrest, Officer Granado had at least three or four contacts with Booker, but did not personally record any information about him. During his investigation of the IE Projects with the FBI gang task force, Officer Granado learned that Booker was known as "Mook" and saw a large tattooed number "9" on Booker's back that looked like a brick. He opined that the tattoo signified the IE Projects and that the tattoo reflected Booker's membership in the gang.
Officer Granado testified that when police officers contact gang members, the officers fill out a "field identification card" to document the gang members or gang associates. He testified that he and other gang experts relied on these cards and used them to stay abreast of active gang members and shared them with other officers. Among other things, the cards contained personal information such as date of birth, physical characteristics, clothing, location of contact, the gang the person is suspected of being from, moniker and photograph. Officer Granado specifically testified about two field identification cards identifying Booker. He was personally familiar with the contact listed on one of the cards because his partner at the time had filled out the card. Without objection, the court later admitted the cards into evidence.
Finally, Officer Granado testified about his familiarity with gang injunctions and that he had personally served IE Projects members with such an injunction. Defense counsel did not object to the court taking judicial notice of the gang injunction, but objected to assuming proof of service as it related to Booker. The court took judicial notice of the injunction and explained what this meant to the jury. Although the injunction targeted IE Projects gang members and listed Booker, the prosecution was unable to prove that Booker had ever been served with the injunction. Accordingly, the court later instructed the jury that the prosecution had not met its burden in establishing the injunction as it related to Booker and that it could not consider the injunction for any purpose.
Special Agent Manzi, assigned to the City of San Bernardino gang task force, had seven years of experience with violent street gangs and previously testified as an expert. Special Agent Manzi's investigation targeted several gangs, including the IE Projects gang, and Special Agent Manzi knew about Booker from his investigations and from other officers assigned to the task force who pointed Booker out to Special Agent Manzi during routine checks of the IE Projects gang. During his investigation of the IE Projects gang, Special Agent Manzi learned that Booker's moniker was "Mook." Over foundational and hearsay objections, Special Agent Manzi testified that Booker was a documented IE Projects gang member.
Officer Murray, another member of the gang task force, had investigated the IE Projects gang and knew IE Projects gang members based on street contacts. He knew Booker from these contacts and had personally talked to Booker. Officer Murray assisted other officers with Booker's arrest at Webb's home where he found Booker with other IE Projects gang members.
B. Analysis
To prove the gang related charge alleged in count 6 (§ 186.22, subd. (a)), the prosecution needed to show, among other things, Booker's active participation in a criminal street gang that is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747.) The gang enhancements required proof that: (1) the defendant committed a felony; (2) for the benefit of, at the direction of, or in association with any criminal street gang; and (3) with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
A trier of fact can rely on expert testimony to reach a finding on a gang allegation (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196), including testimony concerning the culture, habits, and psychology of gangs (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley)). An expert's testimony is also admissible concerning the existence, size, or composition of a gang; an individual's membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; and whether a crime was committed to benefit or promote a gang. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
Expert testimony may be premised on material that is not admitted into evidence or is ordinarily inadmissible, such as hearsay, as long as that material is reliable and of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Gardeley, supra, 14 Cal.4th at p. 618.) "And because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter... upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (Ibid.)
Booker contends the trial court committed reversible error by admitting inadmissible hearsay evidence to prove his gang membership. Specifically, he claims the trial court erred by admitting: (1) the field identification cards; (2) evidence regarding the gang injunction; and (3) Special Agent Manzi's testimony. Booker concedes that defense counsel did not object to the admission of the cards and only objected to the injunction evidence on the grounds the prosecution could not prove he had been served with the injunction. To the extent his claims have been waived by defense counsel's failure to object, Booker argues ineffective assistance of counsel.
We address Booker's contentions on their merits to determine whether the alleged errors impaired his substantial rights; accordingly, we do not analyze these matters in the context of an ineffective assistance of counsel claim. (People v. Chaney (2007) 148 Cal.App.4th 772, 780.)
Booker did not challenge Officer Granado's qualification to testify as an expert. As summarized above, Officer Granado established his knowledge of general gang culture, the IE Projects gang and crimes committed by its members. He opined that the IE Projects was a criminal street gang and that Valdez's shooting benefited the gang. Officer Granado investigated the IE Projects gang and had personal contact with Booker, which included seeing Booker's tattoo. Officer Granado opined that the tattoo signified the IE Projects gang and reflected Booker's membership in the gang. This properly admitted evidence, combined with Webb's testimony, properly proved the elements necessary for liability under section 186.22. Furthermore, there was no contrary testimony.
Booker correctly argues that Officer Granado never testified that he used the field identification cards as a basis for his opinion regarding Booker's gang membership. He contends, however, that the trial court erred when it admitted the field identification cards into evidence. We agree.
An expert may rely on inadmissible hearsay in forming an opinion and such reliance does not implicate Crawford v. Washington (2004) 541 U.S. 36 (Crawford). (People v. Fulcher (2006) 136 Cal.App.4th 41, 55-57; People v. Thomas (2005) 130 Cal.App.4th 1202, 1208-1210.) Here, however, the prosecution failed to lay an adequate foundation for admission of the cards as a business record and they constituted inadmissible hearsay. (Evid. Code, § 1280.) Admission of this evidence violated Booker's Sixth Amendment rights to confront the witnesses against him. (Crawford, supra, 541 U.S. at pp. 53-54, 68-69 [out-of-court statements that are testimonial in nature must be excluded under the Sixth Amendment unless the witness is available at trial and a prior opportunity for cross-examination existed].)
Because the error implicates a constitutional right, we must decide whether it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Under this standard, the People must show there is no reasonable possibility the error affected the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86.) "To say that an error did not contribute to the ensuing verdict is... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. [Citation.]" (Ibid.) As summarized above, other properly admitted evidence overwhelmingly proved that Booker actively participated in the IE Projects gang; accordingly, the admission of the cards was harmless beyond a reasonable doubt.
Booker asserts that the trial court erred when it admitted Special Agent Manzi's testimony that Booker was a documented IE Projects gang member and that his moniker was "Mook" because Special Agent Manzi failed to lay an adequate foundation for this testimony, such as who gave him the information, when he got it or how he got it. We reject this contention because Special Agent Manzi testified that he investigated the IE Projects gang and learned about Booker and Booker's moniker during his investigations and from other officers. Although the information Special Agent Manzi obtained from other officers during his investigations is hearsay, he could properly rely on it to form an opinion. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) His reliance on this hearsay did not violate Booker's Sixth Amendment rights. (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.) In any event, Special Agent Manzi's testimony about Booker's gang membership and moniker was cumulative of Officer Granado and Webb's testimony.
Booker also contends the trial court erred in taking judicial notice of the injunction because it was not relevant and the definition of a gang member in the injunction differed from section 186.22. The trial court, however, ultimately instructed the jury to disregard the injunction after the prosecution could not prove that Booker had been served with it. Assuming, without deciding, there was error, our review of the entire record discloses that even under Chapman, the assumed error was unimportant in relation to everything else the jury considered on the issue of Booker's gang affiliation.
III. Failure to Conduct a Marsden Hearing
Where a defendant claims ineffective assistance of appointed counsel and asks for counsel to prepare a new trial motion based on ineffective assistance, the court should allow the defendant to explain his dissatisfaction and conduct a further inquiry if the defendant's explanation suggests ineffective assistance. (People v. Eastman (2007) 146 Cal.App.4th 688, 695.)
Here, after the jury returned its verdicts on the prior conviction allegations, defense counsel informed the court that Booker wanted to file a new trial motion based, in part, on ineffective assistance of counsel and asked the court to appoint outside counsel to investigate the issue. The trial court, however, did not question Booker; rather, it appointed conflicts counsel to investigate a possible motion for a new trial, but never relieved Booker's trial counsel.
Booker asserts, the People concede, and we agree, that the trial court erroneously failed to conduct a Marsden hearing, and the judgment must be reversed. (§ 1182.) On remand, the trial court must conduct a Marsden hearing; and, if the Marsden motion is granted, the trial court shall appoint new counsel to fully investigate and present a new trial motion. If the Marsden motion is denied or a motion for new trial is not filed or the new trial motion is denied, the judgment shall be reinstated.
IV. Alleged Sentencing Errors
A. Count 1
For his conviction of attempted premeditated murder with a prior serious or violent felony and a gang enhancement, the trial court sentenced Booker to life in prison with the possibility of parole, doubled for the strike allegation, plus consecutive terms of 25 years to life for the firearm enhancement, five years for the serious felony enhancement and 15 years to life for the gang allegation. Booker received a total indeterminate term of 40 years to life in state prison.
Booker asserts, the People concede, and we agree, that the trial court erred when it doubled Booker's life term and imposed a 15-year gang enhancement; rather, the appropriate sentence was life in prison and doubling the 15-year parole eligibility period set by the criminal street gang provision of subdivision (b)(5) of section 186.22. (People v. Jefferson (1999) 21 Cal.4th 86, 99-102.) Accordingly, the abstract of judgment should be amended to strike the language doubling Booker's life term and imposing a 15-year gang enhancement and Booker should be sentenced to a prison term of 25 years to life, with a minimum parole eligibility term of 30 years.
The People also note that the abstract of judgment and the court minutes mistakenly state that the firearm enhancement was under section 12022.53, subdivision (b), rather than subdivision (d). We agree.
Subdivision (f) of section 12022.53 provides that where more than one firearm enhancement is found true, the court shall impose the enhancement that provides the longest term of imprisonment. Here, the jury found true firearm enhancements under subdivisions (b), (c) and (d) of section 12022.53, which provide prison terms of 10, 20 and 25 years, respectively. Because the enhancement under subdivision (d) provided the longest term of imprisonment, the court minutes and abstract of judgment should be amended to reflect the enhancement was imposed under subdivision (d), and that the sentence on the enhancements under subdivisions (b) and (c) were stayed under section 654.
B. Count 2
The jury convicted Booker of being a felon in possession of a firearm and found true the allegation that he possessed the firearm to benefit a criminal street gang. The trial court imposed a 10-year gang enhancement, which is authorized under subdivision (b)(1)(C) of section 186.22 when the underlying offense is a violent felony as described in subdivision (c) of section 667.5. The parties agree, and we concur, that the trial court erred when it imposed the 10-year gang enhancement on count 2 because being a felon in possession of a firearm is not a violent felony, as defined in subdivision (c) of section 667.5. (People v. Mason (2006) 140 Cal.App.4th 1190, 1197.) Accordingly, we strike the 10-year gang enhancement on count 2, and direct the trial court to exercise its discretion under subdivision (b)(1)(A) of section 186.22 to impose a two, three or four-year term for this enhancement.
Finally, even though the prosecutor recommended a section 654 stay on count 2, the trial court imposed a consecutive term on this count. Booker contends the trial court should have stayed the sentence on this count under section 654 because the evidence shows he possessed the firearm only for the purpose of committing the attempted murder and he did not separately possess the gun for an extended period of time before or after the shooting. Booker also asserts the People should be estopped from now arguing that section 654 does not apply because the prosecutor recommended a section 654 stay on count 2 and that position should be binding. We disagree with Booker's contentions.
The doctrine of judicial estoppel is designed to protect the integrity of the judicial process by preventing a party from advocating one position, and later, if it becomes beneficial to do so, asserting the opposite. (People v. Watts (1999) 76 Cal.App.4th 1250, 1261-1262.) When the doctrine of judicial estoppel is asserted, "the court should apply the doctrine only when the party stating an inconsistent position succeeded in inducing a court to adopt the earlier position or to accept it as true. If the party did not succeed, then a later inconsistent position poses little risk of inconsistent judicial determinations and consequently introduces '"little threat to judicial integrity."' [Citation.]" (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) Judicial estoppel does not apply here because the prosecutor did not succeed in convincing the court that section 654 applied to count 2 and thus there is no threat to judicial integrity by allowing the People to assert the opposite position on appeal.
Section 654 prohibits the imposition of multiple sentences where a single act or course of conduct pursuant to a single objective violates more than one statute. In such a situation, a defendant may be punished only for the more serious offense. (People v. Diaz (1967) 66 Cal.2d 801, 806.) However, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.) The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Whether the defendant held multiple criminal objectives is a question of fact for the trial court, and its finding will be upheld on appeal if there is any substantial evidence to support it. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Ex-felons are forbidden from possessing firearms (§ 12021, subd. (a)) and commission of the crime is complete once the intent to possess is perfected by possession. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1414 (Ratcliff).) Where an ex-felon possesses a firearm during the commission of a greater offense, such as attempted murder, application of section 654 often depends on whether the defendant brings the firearm to the scene of the greater offense. For example, courts have concluded that section 654 bars punishment for both possession and the greater offense where the defendant comes into possession of the firearm just as he commits the greater offense. (People v. Bradford (1976) 17 Cal.3d 8, 13 [patrol officer stopped defendant for a moving violation; defendant took the officer's gun and shot the officer]; People v. Venegas (1970) 10 Cal.App.3d 814, 821 [the evidence suggested that defendant obtained the gun during a struggle moments before the shooting].) In contrast, section 654 does not bar punishment for both offenses where the defendant arrives at the scene of the greater offense with the firearm. (People v. Jones (2002) 103 Cal.App.4th 1139, 1141-1142 [ex-felon went to his ex-girlfriend's house, left when he learned she was not there and returned 15 minutes later and began shooting into the home]; Ratcliff, supra, 223 Cal.App.3d at p. 1414 [ex-felon used a gun to commit two robberies about 90 minutes apart and still had the gun when police arrested him 30 minutes after the second robbery].)
Here, as in Ratcliff and Jones, substantial evidence supports the trial court's implied conclusion that Booker possessed a firearm before arriving at the scene of the attempted murder and after the crime. Webb saw Booker handling an assault rifle and watched him leave her home with it just before the shooting. After the shooting, Booker put the rifle in a shed outside Webb's home and later retrieved it. Under these circumstances, the trial court properly refused to apply section 654 to count 2.
In summary, if Booker's Marsden motion is denied or if a motion for new trial is not filed or the new trial motion is denied, the trial court is directed to modify the judgment as follows:
On count 1, the court is directed to strike the language doubling Booker's life term and imposing a 15-year gang enhancement. The court is directed to sentence Booker to a prison term of 25 years to life, with a minimum parole eligibility term of 30 years. The court is also directed to amend the judgment to show that the firearm enhancement under section 12022.53 was subdivision (b), rather than subdivision (d) and that the sentence on the enhancements under subdivisions (b) and (c) were stayed under section 654.
On count 2, the court is directed to strike the 10-year gang enhancement and exercise its discretion under subdivision (b)(1)(A) of section 186.22 to impose a two-, three- or four-year term for this enhancement.
As so modified, the judgment would be affirmed and the trial court directed to amend the abstract of judgment to reflect the modifications and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
DISPOSITION
The judgment is reversed and the matter is remanded. After the issuance of the remittitur, the trial court shall conduct a Marsden hearing and if the Marsden motion is granted, the trial court shall appoint new counsel to fully investigate and present a new trial motion. If the Marsden motion is denied or a motion for new trial is not filed or the new trial motion is denied, the judgment and sentence previously imposed, as modified herein, shall be reinstated.
WE CONCUR: McCONNELL, P. J., NARES, J.