Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Super. Ct. No. 1227250 Hurl W. Johnson III, Judge.
Richard D. Miggins, 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, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J., and Dawson, J.
OPINION
INTRODUCTION
Appellant, Brian Lee Brummett, was charged in an information with attempted murder (Pen. Code, §§ 664 & 187, subd. (a), count one), shooting at an occupied vehicle (§ 246, count two), assault with a semiautomatic firearm (§ 245, subd. (b), count three), brandishing a weapon (§ 417, subd. (a)(2), count four), and participation in a criminal street gang (§ 186.22, subd. (a), count five). The information included firearm use allegations (§ 12022.5, subd. (a), counts one and three) and an additional firearm use allegation (§ 12022.53, subd. (b), count one). There were also gang allegations (§ 186.22, subd. (b)(1), counts one, two & three; § 186.22, subd. (d), count four).
Unless otherwise noted, all statutory references are to the Penal Code.
On September 17, 2007, a jury found appellant not guilty of attempted murder and not guilty of the lesser offense of attempted voluntary manslaughter on count one. On count two, appellant was acquitted of shooting at an occupied motor vehicle but found guilty of the lesser offense of negligent discharge of a firearm (§ 246.3, subd. (a)). The jury found the gang allegation not true. The jury convicted appellant of counts three, four, and five, finding the gun use allegation true in count three and the gang allegation not true in count three. The jury found true the gang allegation in count four.
The trial court sentenced appellant to prison for the midterm of six years on count three and to consecutive sentences on each of counts four and five of eight months. The court imposed a midterm sentence of four years for the gun use enhancement. The court stayed a two-year sentence on count two pursuant to section 654. For an unrelated conviction for felony vehicle theft, the court imposed a concurrent sentence of two years. Appellant’s total prison term is 11 years 4 months. The court imposed a restitution fine and granted applicable custody credits.
Appellant contends the trial court erred under section 654 in failing to stay his conviction on count five for being a member of a criminal street gang because his conviction on count four for brandishing a weapon shared the same criminal intent. Appellant contends that his right to a jury trial was violated because the trial court imposed consecutive sentences. Appellant finally contends, and responded concedes, that there is an error in the abstract of judgment.
FACTS
Mario Delgado was playing soccer by himself on the street outside his home at 6:00 p.m. on May 9, 2007. Delgado was wearing a blue shirt and blue shoes. Delgado was approached by a group of kids and appellant. Delgado described appellant’s demeanor as “bad-ass.” As appellant approached Delgado, Delgado had an uneasy feeling and decided to walk through the alley to go into his back yard.
Appellant followed Delgado, opened the gate, and said “Norte.” Delgado initially said nothing in reply. Appellant asked Delgado if he was a “scrap.” Delgado told appellant that he did not “bang.” Delgado said to appellant, “What’s your problem man?” Appellant pulled out a gun from his waist. When Delgado saw that the gun was real, he became very scared. Delgado was sitting down with appellant aiming the gun directly at him about nine feet away.
Delgado placed his hands up and said: “Hey, no, wait, I don’t bang nothing. Just drop it. I’m not into nothing.” Appellant, who was apparently angry, continued to point the gun at Delgado. After 25 seconds or so, appellant placed the gun back into his waist and started walking away. Appellant’s cousin, K., testified that he was with appellant when appellant “flashed” his gun at Delgado. Appellant asked Delgado if he “claimed.”
Delgado’s cousin, Octavio Lopez, a police officer in Tracy, arrived at Delgado’s home. According to Lopez, Delgado appeared scared and shaky. Delgado told Lopez about the encounter and that appellant was wearing a red jersey bearing the number 24 and was a Hispanic male in his late teens.
Lopez drove away down Leon looking for the person who matched Delgado’s description of the assailant. Lopez drove west and immediately saw and got a good look of the assailant. Lopez called 911. Lopez identified appellant as the person he saw that day.
Lopez made a U-turn in his truck and followed appellant who then made eye contact with Lopez and started running into an alley. Lopez was staying in touch with 911 the entire time. Lopez was about 30 feet behind appellant. As appellant was running, Lopez saw him holding onto his waistband. When appellant turned his hand toward Lopez, Lopez recognized the gesture as a threat and immediately ducked his head under his dashboard. Lopez simultaneously heard a gunshot. Lopez stopped his truck and drew his pistol from its holster. Lopez checked himself to make sure he had not been shot.
Delgado explained that appellant ran toward Leon. Lopez turned onto Leon in his truck. Delgado followed on foot and saw appellant in front of a house. As Lopez followed him, appellant turned down an alley toward Alturas. Appellant was running and Lopez was following him when Delgado heard a gunshot. Prior to the shot, Delgado saw appellant turn toward Lopez. Appellant did not shoot up into the air. Delgado heard a bullet pass by him. It made a “woosh” sound.
Appellant told investigators that he was confronted by someone he thought was a member of the Sureño Por Vida gang, also known as the SPV gang. Appellant asked this person if he was banging. Appellant told investigators that the person called him a buster or a chap, short for chapa or chapita. Appellant said he was formerly associated with the WestSide Boyz gang and had a tattoo. The tattoo had four dots, indicative of the number four in fourteen and the letter “N” for the Norteño or Nuestra Familia gangs. Appellant told investigators that he had not claimed his gang affiliation for five months. The area where the shooting occurred is a border between the Norteño and Sureño gangs.
Investigators found that during a probation search of appellant in April 2006, he was carrying a red handkerchief. The following day, appellant was wearing a red sweat suit with a red stripe and red shoes with red laces. A gang expert testified that gang members build a reputation on the street and gang respect by committing crimes. In Modesto, the primary criminal activities of the Norteños are murder, assault with deadly weapons, drug sales, witness intimidation, automobile theft, and possession of stolen property. Appellant committed felony automobile theft in January 2007. The WestSide Boyz gang is a subset of the Norteños gang. The expert testified that appellant was an active participant of the Norteños.
Appellant’s cousin testified that he was with appellant in the alley and only saw appellant waving the gun around. Appellant did not point the gun anywhere.
SECTION 654 STAY
Appellant contends the court erred in imposing, rather than staying, his sentences for brandishing a weapon on count four and for being an active member of a criminal street gang on count five pursuant to section 654. Appellant argues that the evidence is undisputed that he brandished the gun solely for the purpose of promoting, furthering, and assisting a criminal street gang. Appellant notes that the jury also found true as to count four a gang enhancement pursuant to section 186.22, subdivision (d).
The opening brief incorrectly designates the enhancement as a violation of section 186.22, subdivision (b)(1). We sought additional briefing from the parties on the trial court’s failure to sentence appellant on this enhancement and how the trial court should proceed on remand.
Section 654 applies to sentencing both for crimes flowing from a single act and for crimes resulting from an indivisible course of conduct which violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished once. (Ibid.) Multiple punishments may be imposed, however, where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466 (Herrera).)
Section 186.22, subdivision (d) punishes any person who is convicted of a public offense which is committed for the benefit of any criminal street gang with the intent to promote or assist in criminal conduct by gang members. Like section 186.22, subdivision (a), the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. (See Herrera, supra, 70 Cal.App.4th at p. 1467.)
In Herrera, the defendant and a fellow gang member drove past the house of the mother of a rival gang member, firing each time and injuring two people. (Herrera, supra, 70 Cal.App.4th at p. 1461.) The defendant was convicted of conspiracy to commit murder, two counts of attempted murder, various firearm violations, receiving stolen property, and the substantive gang offense. (Id. at p. 1462 & fn. 6.) On appeal, he argued section 654 barred a separate sentence on the substantive gang offense. The court found the gang offense was divisible from the murder counts because it required a different intent and objective. (Id. at p. 1466.) While the murder counts required simply an objective to kill, the intent and objective for street terrorism was more complex; the defendant must have the intent to actively participate in a criminal street gang. (Id. at p. 1467.)
The holding in Herrera has been followed in other cases. (In re Jose P. (2003) 106 Cal.App.4th 458, 468-471 (Jose P.) [juvenile committed robbery for benefit of criminal street gang]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935 (Ferraez) [possession of drugs with intent to sell for benefit of criminal street gang].)
One exception to Herrera is the case of People v. Vu (2006) 143 Cal.App.4th 1009 (Vu). In Vu, the defendant committed different acts, conspiracy to commit murder and street terrorism. (Id. at pp. 1012-1013, 1034.) These acts constituted a single intent and objective because the defendant’s objective was to avenge the death of a fellow gang member by conspiring to commit murder. Vu held that the two criminal intents were not independent and that the gang conviction had to be stayed under section 654. (Id. at p. 1034.)
This case is closer factually to Herrera, Jose P. and Ferraez than it is to Vu. The criminal intents in Vu of conspiracy to murder someone who was believed to have killed a fellow gang member and the offense of promoting a criminal street gang were so inextricably interwoven as to be a single intent. Here, the brandishing of a firearm to promote the interests of the Norteño gang was not so intertwined as to constitute one single criminal intent. There was evidence here that appellant had been a member of his gang for some time and had a gang tattoo. Appellant had a felony conviction for automobile theft, an offense for which he was sentenced in the instant action. Thus, there is other evidence that appellant harbored a simultaneous and separate intent to promote a criminal street gang independent of his crime of brandishing a firearm. (Herrera, supra, 70 Cal.App.4th at p. 1468.) We find that the trial court did not err in failing to apply a section 654 stay to count four.
Appellant argues that the prosecutor argued to the jury that appellant committed the brandishing offense for the benefit of a criminal street gang. The prosecutor further argued, however, that appellant was serving his gang in a manner similar to a union, Rotary, or the Lion’s Club, but unlike those organizations appellant’s gang has criminal activity as its purpose. The prosecutor effectively argued that the street gang offense in count five was a separate and independent offense from the other allegations.
We further find, however, that the gang enhancement under section 186.22, subdivision (d) was indistinguishable from the act of brandishing the gun. Although we do not find the reasoning of the Vu decision persuasive as to the substantive street terrorism offense alleged in count five, we do find it applicable to the enhancement alleged as part of the brandishing allegation. Our conclusion is supported both by the evidence adduced at trial and the prosecutor’s argument to the jury concerning this particular enhancement.
We note the trial court failed to sentence appellant on this enhancement. Prison terms on enhancements are mandatory unless the trial court strikes them upon a proper statement of reasons. (See People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Johnson (2006) 145 Cal.App.4th 895, 908, fn. 20; People v. Irvin (1991) 230 Cal.App.3d 180, 191-193.) On remand, the trial court has the option of sentencing appellant on the section 186.22, subdivision (d) enhancement and staying its sentence pursuant to section 654, or, striking this enhancement upon a statement of reasons.
RIGHT TO JURY TRIAL FOR CONSECUTIVE SENTENCING
Appellant contends the trial court violated his right to a jury trial in sentencing him to consecutive sentences. Appellant raises this issue to preserve his right to federal review, acknowledging that the California Supreme Court held that defendants receiving consecutive sentences are not entitled to a jury trial in People v. Black (2007) 41 Cal.4th 799, 820-822.) We are bound by the decisions of our Supreme Court and reject this contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
ERRORS IN ABSTRACT OF JUDGMENT
Appellant contends, and respondent concedes, that the abstract of judgment erroneously indicates that appellant was convicted in count two of section 246, shooting at an unoccupied vehicle, when he was actually convicted in count two of section 246.3, subdivision (a) negligent discharge of a firearm.
In sentencing appellant on count two, the court stated that it thought everyone agreed that appellant’s sentence on that count was subject to section 654. The abstract of judgment, however, states that the sentence on count two was to be served concurrently and does not indicate a stay.
Respondent argues there is an ambiguity warranting a remand to the trial court for clarification. We do not agree. The court clearly stated on the record that it was staying appellant’s sentence on count two. Neither party objected to the court’s comment. Any ambiguity in the abstract of judgment is attributable to clerical error, which is correctable at any time. (People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295.)
DISPOSITION
The case is remanded to the trial court to either (1) impose sentence on the section 186.22, subdivision (d) enhancement and then stay sentence pursuant to section 654, or, (2) to strike the enhancement upon a proper statement of reasons. The court shall then prepare an amended abstract of judgment indicating its sentencing choice as to the gang enhancement and indicating that appellant was convicted in count two of section 246.3, subdivision (a). The court shall forward the amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.