Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF184161C Kathryn T. Montejano, Judge.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Kane, J., and Poochigian, J.
A jury convicted appellant, Heriberto Rogelio Botello, of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 3 and 4) and single counts of kidnapping for the purpose of committing robbery (§ 209, subd. (b)(1); count 1) and making a criminal threat (§ 422; count 5). In addition, the jury found true allegations of the following: appellant committed each of these offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)), he personally used a firearm in committing the offenses charged in counts 3, 4, and 5, within the meaning of section 12022.5, subdivision (a); and he personally used a firearm in committing the count 1 offense, within the meaning of section 12022.53, subdivision (b) (section 12022.53(b)).
Except as otherwise indicated, all statutory references are to the Penal Code.
We generally refer to subdivisions of section 186.22, and to smaller components of those subdivisions, in abbreviated form, e.g., sections 186.22(a), 186.22(b)(1), 186.22(b)(1)(C). We refer to the allegation made pursuant to section 186.22(b) as the gang allegation.
The court imposed an indeterminate sentence of life in prison with the possibility of parole on count 1, plus a determinate term of 10 years on the count 1 section 12022.53(b) enhancement. On counts 3, 4, and 5, the court imposed concurrent determinate terms.
On appeal, appellant contends (1) the evidence was insufficient to support the true findings on the section 186.22(b) gang allegations; (2) the court’s failure to stay the sentences imposed on counts 3, 4, and 5 violated section 654; and (3) the abstract of judgment incorrectly states that the court imposed a consecutive sentence on count 3, and therefore the abstract must be corrected. We affirm the judgment and direct the trial court to prepare an amended abstract of judgment.
FACTS
The Instant Offenses
Justin Hawkins testified that he and Jesus Salazar are members of the “Bulldog gang” and that the “enemies” of the Bulldog gang include the “Nortenos.”
On May 19, 2007, Hawkins and Salazar were walking down an alley when they encountered appellant and his codefendant, Armand Torres. Appellant and Torres asked Hawkins and Salazar who they were and where they were from. Salazar responded that they were members of the Bulldog gang from Laton, at which point appellant and Torres pulled out guns. Hawkins ran off, hid behind a car, and called the police on his cell phone.
Salazar testified appellant and Torres “beat [him] up” using their guns, and then forced him into the back seat of a car. The car belonged to Adrian Vasquez. Vasquez drove off; he testified Torres sat next to him, Botello and Salazar sat in the back, and both appellant and Torres were holding guns. Salazar testified that while in the car, he was struck multiple times with a gun. At some point, Salazar’s belongings―including an earring, a knife, and a necklace―were taken from him. The earring was taken from him when he was in the alley, before he was forced into the car.
Vasquez testified to the following: He drove “out to the countryside....” As he drove, appellant struck Salazar in the face with his hand multiple times and Torres, “[a]t some points, ” pointed a gun at Salazar.
Hawkins testified that after he ran away, he placed a telephone call to Salazar’s cell phone, and a person whose voice he did not recognize answered. Vasquez testified that while he was driving, he heard appellant say to someone during a telephone conversation that Salazar’s name would appear in the newspaper. It was Vasquez’s understanding that appellant was referring to the obituary section of the newspaper.
Gang Evidence
City of Tulare Police Officer Jesus Guzman qualified as an expert on criminal street gangs and testified in that capacity as follows:
The group known as the Nortenos “began in the prison system” and expanded “from the prisons to the streets.” The group has 500 to 800 members in the City of Tulare, and it “identif[ies] with a common name, ” viz., “Northers, ” and with the following “symbols”: the “huelga bird, ” the number 14, and the color red. Primary activities of the group include robbery, carjacking, homicide, attempted homicide, witness intimidation, and felonious assault.
In 2005, Ruben Valdez, a Norteno gang member, shot a “suspected” rival gang member. The crime was “part of the pattern of Norteno criminal street gang activity in the County of Tulare.” Also in 2005, another Norteno gang member, Lupe Doporto, made a death threat to a witness in the Valdez case. This crime was also part of the pattern of Norteno gang activity in Tulare County.
The Nortenos’ rivals “would be the southern gang members, Surenos, Bulldogs.” The Bulldogs are a criminal street gang. Some members of the Nortenos identify themselves as “being part of” the group known as the “West Side Tula gang” (WST), which Officer Guzman characterized as a “clique” of the Nortenos. Cliques, such as the WST, “follow orders” from the Nortenos.
Officer Guzman testified that appellant is a member of “a northern affiliated gang” in Tulare, and that “West Side Tula” is the “specific gang in the City of Tulare that … he is affiliated with or a member of[.]” The Nortenos “claim” the entire City of Tulare as their territory, and the WST claim “anything [in] the west side of Tulare.”
City of Tulare Police Officer Matt Machado testified that he made contact with appellant in December 2005, at which time appellant, who was wearing a red cloth belt, stated he was a member of the WST.
In response to a hypothetical question, Officer Guzman testified to the following: The offenses described in the question were “part of a pattern of the Norteno criminal street gang activity[.]” Such offenses would be committed “to benefit the... Norteno gang” because pointing a gun at a rival gang member, forcing him into a car, taking his belongings, and then driving him out to the country would be interpreted as “putting a rival gang member down.” The perpetrators would “gain... respect from the Norteno criminal street gang for that activity[.]”
The hypothetical question posited the following: Two “active Bulldog gang members” are walking down a particular alley in the direction of a specified address in the City of Tulare. Two men (assailants) “confront” them and ask “where are you from, do you bang[?]” One of the Bulldog gang members (BGM 1) responds, “Laton dog.” The assailants “pull out guns, stick them at [BGM 1], ” and his companion (BGM 2) “takes off running.” The assailants “proceed to take the property of [BGM 1] and put him into a car and transport him out into the county [sic].” The assailants “pistol whip [the victim], rob him of his phone while he is... out in the county [sic] area....” During the course of the car ride, BGM 2 places a call to BGM 1’s cell phone, and one of the assailants answers and calls BGM 2 a “mutt or bull frog.” Items bearing gang indicia about which the officer had testified earlier were found the next day in the house at the address referred to above. One of the assailants admits he is a WST member.
DISCUSSION
Gang Allegations
Establishing the truth of the section 186.22(b) gang allegation requires a two-part showing. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) The prosecution must establish the underlying crime was “[1] committed for the benefit of, at the direction of, or in association with any criminal street gang, [2] with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22(b)(1).) Appellant’s challenge is directed at the first prong of section 186.22(b)(1). He argues the evidence was insufficient to establish the instant offenses were committed for the benefit of a criminal street gang. We disagree.
Appellant does not challenge the sufficiency of the evidence as to the specific intent prong of section 186.22(b)(1).
“‘When considering a challenge to the sufficiency of the evidence..., 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 in support of the judgment the existence of every fact the trier of fact reasonably could infer 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.’” (People v. D’Arcy (2010) 48 Cal.4th 257, 293.) “This standard applies to... gang enhancement findings.” (People v. Villalobos, supra, 145 Cal.App.4th at pp. 321-322.)
The first prong of section 186.22(b)(1) can be viewed as consisting of two elements: (1) whether the underlying offense was committed for the benefit of, at the direction of, or in association with a certain group, and (2) whether that group is a criminal street gang. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846 [“The existence of a criminal street gang is unquestionably an element of the street gang enhancement”].) Appellant’s argument focuses on the second of these elements. In order to establish that a group is criminal street gang within the meaning of section 186.22(b), the People must prove the group “‘(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) The evidence relevant to the determination of whether the Nortenos are a criminal street gang is set out at length above, and we need not repeat it here. Appellant does not dispute, and we conclude, the evidence was sufficient to establish that the Nortenos are a criminal street gang within the meaning of section 186.22(b). We conclude further, as appellant also does not dispute, that Officer Guzman’s expert testimony that, in his opinion, the instant offenses were committed to benefit the Nortenos was sufficient to establish that point. No more is required. Substantial evidence supports the conclusion that appellant committed the instant offenses for the benefit of a criminal street gang, viz., the Nortenos.
Appellant contends this analysis focuses on the wrong group. He argues that although the evidence was sufficient to support a finding that the Nortenos are a criminal street gang within the meaning of section 186.22(b), the evidence was not sufficient to establish that the WST qualified as a criminal street gang, and therefore the true findings on the gang allegations must be reversed. He bases this contention chiefly on this court’s opinion in People v. Williams (2008) 167 Cal.App.4th 983 (Williams).
The defendant in that case was convicted of murder (§ 187, subd. (a)) and the substantive offense of active participation in a criminal street gang, in violation of section 186.22(a), and the court found true a gang-related special circumstance allegation (§ 190.2, subd. (a)(22)). This court defined the issue as “the relationship that must exist before a smaller group can be considered a part of larger group for purposes of determining whether the smaller group constitutes a criminal street gang.” (Williams, supra, 167 Cal.App.4th at p. 985.) The prosecution presented evidence of a larger group known as the Peckerwoods, and a smaller group known as the Small Town Peckerwoods (STP). Specifically, an expert witness opined that the Peckerwoods qualified as a criminal street gang and that smaller groups, such as the STP, “are all factions of the Peckerwood organization.” (Id. at p. 988.) The defendant argued that although there was evidence he was an active participant in the smaller group, “there was insufficient evidence of a connection between members of the Small Town Peckerwoods and [the larger group].” (Id. at p. 987.)
Section 186.22(a) provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” Section 190.2, subdivision (a)(22), creates a special circumstance applicable to the sentence imposed for murder where the murderer kills the victim “while the [murderer] was an active participant in a criminal street gang.” The term criminal street gang is defined in subdivision (f) of section 186.22. The definition set forth there applies to both subdivisions (a) and (b) of section 186.22 (§ 186.22(f)), and to the gang special circumstance (§ 190.2, subd. (a)(22)).
This court agreed with the defendant, and held that in considering whether the criminal street gang element of the offense had been established, the trier of fact could not consider evidence relating to the larger Peckerwoods group because the People had not established a sufficient connection between the smaller group and the larger group. “[S]omething more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization.... On the record before us, however, it would be speculative to infer that the Small Town Peckerwoods and greater Peckerwood gang shared more than an ideology....” (Williams, supra, 167 Cal.App.4th at pp. 988-989.)
Williams is inapposite. As indicated above, the issue in that case was whether it could be established that the smaller group was a criminal street gang based on the extent of its connection with the larger group. (Williams, supra, 167 Cal.App.4th at p. 985 [“we... address the relationship that must exist before a smaller group can be considered a part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang”].) That issue is not before us here; we need not decide whether the smaller group―the WST―qualified as a criminal street gang in its own right because (1) regardless of what the evidence established regarding the status of the WST, the evidence was sufficient to establish that the Nortenos are a criminal street gang, independent of any connection(s) between that gang and its smaller affiliated groups, and (2) appellant does not challenge the sufficiency of the evidence that his conduct benefitted the Nortenos or that he acted with requisite specific intent. Therefore, we will not disturb the true findings on the gang allegations.
Even if the issue here was whether the evidence was sufficient to establish that a connection existed between the WST and the Nortenos that would justify treating the two groups as “[part] of the same overall organization” (Williams, supra, 167 Cal.App.4th at p. 988), we would reject appellant’s argument. As indicated above, such a relationship is established if the two groups have “some sort of... collective organizational structure” from which the requisite “overall organization” is “inferable.” (Ibid.) Officer Guzman’s testimony that cliques of the Nortenos, such as the WST, “follow orders” from the Nortenos was sufficient to establish the requisite “collective organizational structure.” (Ibid.)
The instant case is similar to People v. Ortega (2006) 145 Cal.App.4th 1344 (Ortega). In that case, the defendant argued there was “insufficient evidence to sustain a finding of the existence of criminal street gang, ” for purposes of the gang-related substantive offense (§ 186.22(a)) and special circumstance (§ 190.2, subd. (a)(22)). (Id. at p. 1355.) In rejecting this argument, the appellate court held the evidence was sufficient to establish that the Nortenos were a criminal street gang, based on evidence of the thousands of Norteno gang members in the Sacramento area, symbols associated with the Nortenos, the primary activities of the Nortenos, and the requisite two predicate offenses committed by the Nortenos. (Id. at p. 1356.)
The prosecution also presented evidence that the Sacramento-area Nortenos were “a criminal street gang made up of 20 to 25 different subsets, ” and that the defendant was a member of one of those subsets. (Ortega, supra, 145 Cal.App.4th at p. 1354.) The appellate court “reject[ed] defendant’s assertion that the prosecution had to prove precisely which subset was involved in the present case.” (Id. at pp. 1356-1357.) The court explained: “No evidence indicated the goals and activities of a particular subset were not shared by the others. There was sufficient evidence that [the Nortenos were] a criminal street gang, that the murder was related to activity of that gang, and defendant actively participated in that gang. There is no further requirement that the prosecution prove which particular subset was involved here.” (Id. at p. 1357.)
Here, as in Ortega, it is of no moment that the Nortenos are affiliated with smaller groups. Nor does it matter that appellant was a member of one of those groups. As in Ortega, appellant’s challenge to the sufficiency of the evidence supporting the gang element fails because the evidence was sufficient to establish that the larger group―the Nortenos―are a criminal street gang, and there was no evidence indicating the goals and activities of the WST differed from the Nortenos.
Section 654Appellant contends the instant offenses comprise “a single indivisible course of conduct, ” and, therefore, imposition of concurrent sentences on his convictions in counts 3, 4, and 5 constituted impermissible multiple punishment in violation of section 654. The People argue that all terms were properly imposed.
Section 654, subdivision (a), provides, in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Our Supreme Court has “often said that the purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate with [the defendant’s] culpability.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1211 (Latimer).)
Under the plain language of the statute, multiple punishment may not be imposed for a single “act or omission.” (§ 654, subd. (a)). However, “Case law has expanded the meaning of section 654 to apply to more than one criminal act when there was a course of conduct that violates more than one statute but nevertheless constitutes an indivisible transaction.” (People v. Hairston (2009) 174 Cal.App.4th 231, 240.)
In determining whether a course of conduct consisting of multiple acts is indivisible, we look to the “defendant’s intent and objective....” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” (Ibid.) On the other hand, “[i]f [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Nonetheless, “decisions... have refined and limited application of the ‘one intent and objective’ test, in part because of concerns that the test often defeats its own purpose because it does not necessarily ensure that a defendant’s punishment will be commensurate with his culpability.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253 (Kwok).) Thus, as our Supreme Court noted in Latimer, cases decided since the intent–and–objective rule was announced in Neal v. State of California (1960) 55 Cal.2d 11 have “limited the rule’s application in various ways, ” including, in some cases, by “narrowly interpret[ing] the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment.” (Latimer, supra, 5 Cal.4th at pp. 1211-1212, italics omitted.) One such case is People v. Trotter (1992) 7 Cal.App.4th 363, 368 (Trotter).)
In Trotter, the defendant was punished separately for two of three gunshots fired at a pursuing police officer. On appeal, the court rejected the defendant’s claim of a single objective―“to force [the pursuing officer] to break off his pursuit” (Trotter, supra, 7 Cal.App.4th at p. 367) and thereby avoid apprehension―and concluded it was proper to punish him separately for the first two shots, which were fired within one minute of each other. The court observed: “[T]his was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. ‘[D]efendant should … not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his … assaultive behavior.’” (Id. at p. 368, citing People v. Harrison, supra, 48 Cal.3d at p. 338.)
In the instant case, the People, noting that the prosecutor argued the first assault occurred in the alley when appellant and Torres attacked Salazar and the second assault occurred later in the car as appellant beat Salazar and Torres pointed a gun at him, argue that “[a]s in Trotter, where the defendant committed separate volitional acts and had an opportunity to reflect between the acts, the separate assaults should be punished as appellant had an opportunity to reflect and stop his assaultive behavior.”
We agree that appellant had an opportunity to reflect between the time he assaulted Salazar in the alley and the time in the car later when he assaulted him again and threatened to kill him. After the first assault, appellant could have simply gotten into Vasquez’s car, left the scene, and thereby stopped his assaultive conduct. Instead, he, along with Torres, forced Salazar into the car and committed another crime of violence and one crime of threatened violence. As in Trotter, section 654 does not preclude punishment for these offenses.
Appellant suggests Trotter was wrongly decided. However, in Latimer, the California Supreme Court expressly approved Trotter. (Latimer, supra, 5 Cal.4th at p. 1216.) We are bound to apply the law as our Supreme Court pronounces it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant also argues that all four offenses were committed for the same purpose: the intimidation of a rival gang member, and therefore, under section 654, punishment may be imposed for the kidnapping only. We disagree. To define intent in this manner for purposes of section 654 would reward any gang member who goes on a crime spree against a rival gang, in contravention of the purpose of section 654. On this point, we find instructive People v. Perez (1979) 23 Cal.3d 545. In that case, the defendant argued that his “sole intent and objective” in committing multiple sex crimes over the course of an attack lasting 45 to 60 minutes was to “obtain sexual gratification, ” and, therefore, punishment on more than one of those crimes violated section 654. (Id. at p. 552.) The court rejected this argument. Its basis for doing so applies with equal force here: “Such an intent and objective is much too broad and amorphous to determine the applicability of section 654. Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability. [Citation.] It would reward the defendant who has the greater criminal ambition with a lesser punishment.” (Ibid.) Appellant’s characterization of his intent is similarly “much too broad and amorphous to determine the applicability of section 654.” (Ibid.)
Appellant also argues, as best we can determine, that where kidnap for robbery is committed as part of a course of criminal conduct that includes assaults and threats of violence, “Separate sentences for those offenses may be imposed only where the force or threat used by a robber is gratuitous, when it is inflicted for reasons other than to effectuate the robbery.” (Italics added.) In support of this contention, he cites two cases: People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen) and People v. Coleman (1989) 48 Cal.3d 112 (Coleman). We agree that these cases stand for the proposition that the section 654 prohibition against multiple punishments for a continuous course of conduct does not extend to assaults, threats, or other criminal acts committed for gratuitous purposes or to facilitate an escape or evade prosecution. (Nguyen, supra, 204 Cal.App.3d at pp. 190-191; Coleman, supra, 48 Cal.3d at p. 162.) And we assume without deciding that substantial evidence does not support the conclusion that the criminal threat, the first assault and/or the second assault were gratuitous acts, unnecessary to effectuate either the kidnapping or the robbery. But neither Nguyen, Coleman, or any other case of which we are aware supports the claim that section 654 permits multiple punishment for assaults and/or threats committed in the course of criminal conduct that includes a robbery, or kidnapping for the purpose of robbery, only when such assaults and/or threats can be deemed gratuitous. Punishment was properly imposed on each of appellant’s convictions.
Abstract of Judgment
As indicated above, the court ordered the sentences imposed on counts 3, 4, and 5 to be served concurrently with the sentence on count 1. The determinate term abstract of judgment (DT abstract), however, suggests that the court imposed a consecutive 17-year term on the count 3 substantive offense and accompanying enhancements. Specifically, (1) with respect to each of counts 4 and 5, the box indicating a concurrent sentence is marked with an “X, ” but no mark appears in the space that would indicate a concurrent sentence on count 3, and (2) the number years on each of the count 3 and 4 sentences are within parentheses, but the number of years for the count 3 offense is not.
Appellant contends, and the People agree, the DT abstract of judgment is in error. The parties further agree that this court can order an amended abstract be issued, correcting the error. We will do so. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment].)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment indicating that the court imposed a concurrent sentence on the count 3 offense and accompanying enhancements. The court is further directed to forward a certified copy of the amended abstract of judgment to the Director of the Department of Corrections and Rehabilitation.