Opinion
B229185
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSE CASILLAS, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. MA041397)
APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed as modified and remanded for resentencing.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Jose Casillas, appeals the judgment entered following his conviction for second degree murder and 22 counts of premeditated attempted murder, with gang and firearm use enhancements (Pen. Code, § 187, 664/187, 186.22, 12022.53). He was sentenced to state prison for a term of 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified and remanded for resentencing.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
a. The Katrina Place shooting (counts 1-14).
On the night of February 10, 2008, Ricardo Ruiz, Mayra Esteves and their infant daughter went to a house at 5105 Katrina Place in Palmdale to attend a birthday party for Christina Esteves. There were 50 to 100 people at the party. At one point, the police came in response to complaints about the noise. After the police left, a fight broke out. Later, the police made a second visit because of further noise complaints and they shut down the party, telling people to leave.
That same night, Erika V. and her sister were attending a party at Jorge Lopez's house, which was about two blocks from 5105 Katrina Place. A man Erika knew as Casper was at Lopez's party. Defendant Casillas, who had also been attending the party, later gave Erika and her sister a ride home. During the ride, Erika saw Casper walking down the street; he was "walking weird, as if he were drunk or something." As they drove by him, Casillas called out "Casper."
Around 1:00 a.m. that night, Ricardo was in the garage of the Katrina Place house with Robert Esteves when he heard gunshots. One shot was fired into the garage and made a hole in a television set. Ricardo went to the house and rushed upstairs to check on his daughter, who had been sleeping in the master bedroom with Christina's child. There were two bullet holes in the bathroom of the master bedroom, about three feet away from where the children had been sleeping.
Maria Ruiz had been sitting at the dining room table in the Katrina Place house when the gunfire erupted. When Maria stood up, she felt a bullet go through her hair. Gerardo Salazar, Elizabeth Salazar, Denise Fernandez, Mayra Esteves and Adriana Rodrigues were also sitting at the dining room table at the time. Mayra heard about 15 shots; Rodrigues heard 18 shots. Four bullets came through a bay window which was in front of the table, and nine bullets hit the dining room table. Gerardo Salazar was found bleeding and lying face down on the floor. He died from a gunshot wound to the back of the head.
At the time of the shooting, Daniel Dorado, Christina Esteves, Luze Esteves and Sergio Hernandez were on the second floor of the Katrina Place house. Luze and Sergio Hernandez were sleeping in the third bedroom. Luze testified she was awakened by the sound of 20 gunshots. Daniel and Christina were watching television in the second bedroom, which was located across the stairs from the master bedroom and directly above the dining room. Daniel looked out the window and saw a pickup truck "directly south" of the front door of the house. He saw gunshot muzzle flashes coming from the truck; some of these gunshots were being directed toward the second bedroom. Afterward, three bullet holes were found in the second bedroom, about two or three feet from where Daniel and Christina had been sitting when the shooting started.
b. The Morning Circle shooting (counts 15-24).
Vicente Valle and his family lived in a house on Morning Circle. A little after 1:00 a.m. on February 10, 2008, Valle and his wife Maria were sleeping in a bedroom above the garage when gunfire erupted. Valle heard nine shots. They went into the house to check on their children and then they went outside, but by then the street was empty. Valle observed extensive gunshot damage to the front of his house, including bullet holes in the stucco on the first and second stories. There was a hole in the glass window above the front entry door; the bullet which had gone through this window was the only bullet that actually penetrated the house. This bullet "went through the second floor . . . to where the back of the master bedroom was." The other eight bullets were embedded at various points in the exterior stucco walls of the house.
At the time of the shooting, the other members of the Valle family who were inside the house included Valle's brother Victor, Victor's wife Maria Veronica and their four children. Valle's four children were also inside the house.
c. Forensic evidence.
Robert Keil, a senior criminalist and firearms examiner with the Los Angeles County Sheriff's Department, examined the Katrina Place shooting scene.
One bullet had gone through the garage door, pierced a wall and a television set, and then embedded itself in the back wall of the garage. Keil found numerous bullet holes in the front of the house. One bullet had gone through the dining room window and a wall, and ended up inside the kitchen refrigerator. Another bullet, which also had gone through the dining room window, was the bullet that killed Gerardo Salazar. Three bullets were found in the foundation area of the south exterior wall, underneath the dining room window. Three other bullets had gone through a stucco wall next to the dining room window and hit the north wall of the dining room. Another bullet had gone through the same wall, travelled through a hallway, and hit the wall on the opposite side of a stairway. One bullet had gone through the frame of the front door and then hit a wooden cabinet in the kitchen.
On the second floor of the Katrina Place house, Keil found a bullet hole in one of the roof tiles. This bullet had gone through the wall of the second bedroom and through a pair of sliding closet doors. There was evidence that another bullet had hit the wall of the second bedroom. There were two bullet holes just to the left of the window in the second bedroom; these bullets had hit the north wall of the bedroom, one of them traveling across the hallway and through the staircase wall. Keil recovered a bullet fragment from the master bathroom sink.
On the street just south of the Katrina Place house, Keil found 16 spent cartridge cases. These were from 7.62 by 39 millimeter bullets which could have been fired from an AK-47 rifle. Because of its extremely high muzzle velocity, the bullets from an AK-47 have "the capability to . . . penetrate barriers more readily, such as exterior walls, vehicle doors. More substantial things can be penetrated by this 7.62 bullet than with a bullet such as a handgun bullet, like a nine-millimeter . . . ." Keil also testified: "[F]or the bullet fragments that were suitable for examination, I was able to determine that they were 7.62 or .30-caliber bullets, and that the rifling characteristics are indicative of AK type firearms, such as the AK-47 that was mentioned earlier."
d. Casillas's extra-judicial statements.
(1) Interrogation by Detective Cooper.
Los Angeles County Sheriff's Detective Howard Cooper was the chief investigating officer. Within a week or two of the shootings, Kyle Johnson and Peter Cerda had been arrested. Casillas was arrested on March 4, 2008. When Cooper interviewed him, Casillas gave the following account.
He had gone to the party at Jorge Lopez's house that night. Later, he gave Erika and her sister a ride home, and Lopez rode with them. On the way, Casillas saw a White guy on the sidewalk. Lopez tried to talk to the guy, but he ran off. After dropping the girls off, they returned to Lopez's house, where Casillas saw the same White guy. Casillas overheard talk indicating the White guy had been beaten or "jumped," and that he was mad about it. Casillas did not know who had jumped the White guy, whom he had just met that night.
Casillas then drove the White guy, Lopez and some other people to Marcos's house, where there was talk about procuring a gun. Cerda asked Casillas if he would give them a ride and Casillas agreed. They drove to another house to pick up the gun. Cerda came out of the house carrying something wrapped in a blanket. When Detective Cooper asked if it were "a big rifle," Casillas said: "I assumed it was cause he was holding it with two hands." Casillas also said, "[Y]ou could tell it was like a rifle or something."
They returned to Marcos's house. Casillas locked the gun in his pickup truck's built-in toolbox. Casillas was then asked to drive his truck while Cerda and Johnson carried out a shooting. The truck was running low on gas, but they offered Casillas gas money so he agreed. After gassing up the truck, however, they returned to Marcos's house where people sat around and took drugs. Casillas thought they were going to forget about the drive-by shooting, but later someone said let's go, "[s]o then we went." Casillas drove Cerda and Johnson, and possibly some others.
Casillas said the others took crystal methamphetamine, but that he did not partake.
Casillas was vague about how many others might have been in his truck at this point.
"[Detective]: Ok. And why did they want to shoot this place up? Cause that one dude got beat up?
"[Casillas]: Cause supposedly, supposedly I overheard since I was hangin' with the guy that the white dude talked [sic], cause yeah fuck those boys were beatin' me up, a ton of fools came out. A ton of fools came out and they jumped 'em. And then, he was, he was mad."
At Katrina Place, Cerda was initially uncertain about which house they were going to attack and he asked Casillas to drive by twice. The second time, Casillas stopped short of the house so Johnson could get into the bed of the pickup truck with the rifle. Johnson told Casillas to drive down the street and stop in front of Christina's house. Johnson fired at the house and then put the rifle back into the toolbox. Casillas then drove out to the desert. Cerda said he knew where "some fools from VVP" were and he wanted to be taken there. Casillas told Cooper that VVP stood for a rival gang named Val Verde Park. Cerda moved to the bed of the pickup truck and directed Casillas to Morning Circle where Cerda shot at the VVP house. After the shootings, Casillas drove Johnson and Cerda home.
Casillas indicated he had participated in the shootings for money:
"[Detective Cooper]: [W]hat you told me is that you knew these guys were gonna go do a shooting but you didn't want to do it, but they were gonna give you gas money and so you agreed to do it. Right?
"[Casillas]: It was my only way to get home. I don't got no money."
(2) Casillas's conversation with his grandmother.
After his interview with Detective Cooper, Casillas was put into a cell and given access to a phone. He called his grandmother and their conversation was tape recorded.Casillas told his grandmother he was in custody on a murder charge because he had given a ride to some guys who carried out a drive-by shooting. When his grandmother asked what he had told the police, Casillas said, "I told them the truth. I told them that I was just driving." Casillas gave his grandmother the following account: "[T]his is what happened. One . . . young guy . . . was very drunk, and he was jumped on. And then, he came back angry, and they told me, 'we can go to the house to get something.' I say, 'okay.' To go to his friend's house . . . . Okay, 'I'll take you,' the house is near by. But we came for one, for one weapon. And after that we went to another house of a friend, and it was very late, and I thought that they were gonna [say?] 'hey it's already too late and this and that,' so that's why I didn't say anything. And then . . . so, 'oh, yeah . . . take me,' 'well, yes,' and then they fired, he lied down in the back of my truck, and they fired and that's it."
While Casillas's interview with Cooper had been conducted in English, his conversation with his grandmother was conducted in Spanish.
Casillas's grandmother suggested he could claim he was unacquainted with the gunmen and he didn't know what they were planning to do. Casillas said he couldn't do that "[b]ecause when I went to drive the young guy, he came up with the gun," and "they told me, 'if you take me, I give you money to put gas in the truck.' I told them, 'okay.' " "[T]he problem is that I knew what they were going to do. They told me, first." (Italics added.)
Casillas's grandmother urged him to tell the police the gunmen had threatened to hurt him if he refused to drive them: "Defend yourself, and tell them . . . lies, even though, you had already told them one thing, it doesn't matter. You did it for fear – if you saw them with the gun, how you were gonna say no. You did whatever they wanted." Casillas agreed to follow her advice and lie.
e. Gang expert testimony.
Los Angeles County Sheriff's Detective William Pickett worked as a gang investigator in the Antelope Valley. He explained the difference between tagging crews and gangs. Tagging crews write graffiti "for notoriety, fame or vandalism itself." "They want to get their name written down as many places . . . as they can, and it builds their notoriety and fame. It has nothing to do with a gang. It has nothing to do with a territory." It is rare "to find taggers carrying weapons. Taggers are not into violence. They are not into robberies and committing crimes and other things within the neighborhood. They are more into the spray paint . . . ." By contrast, "[a] gang member will tag an area because he is claiming that area as his. Either that or he is calling out another gang. He is stepping into another gang territory. He is writing his graffiti on there, basically disrespecting another gang by walking into their area and tagging on the wall." As a result of these distinctions, "[g]ang members don't look at taggers usually as a threat."
Pickett had seen tagging crews evolve into criminal gangs. "There are several gangs I can recall offhand down in South Central L.A. and up here that have done the progression from [tagging crew to gang]." "You'll see individuals, as they get older, no longer want to tag. And they will progress their way into something more hard core and actually join a gang and progressing on." "But once they start progressing, you will get more and more arrests of these taggers carrying weapons. Their graffiti will change. They will be starting into more crimes. You will see such things as drug sales. You will see stolen cars. . . . You'll see the crimes start to increase and the violence usually increase."
To become a gang, tagging crews need to show they can hold their own against other gangs. "So what they have to do, their status is built on violence and who is the most feared and who is the . . . strongest and who is willing to commit more crimes. So they're going to progress up the food chain when it comes to committing violent crimes, such as shootings, drive-by's, stabbings or murders or attempted murders. They have to show that progression . . . before they can . . . get to a certain level. Then the gang looks at them like, all right, you have made the level."
"Q. [D]oes that . . . initial tagging group, when they want to become a legitimate street gang, do they attack other gangs that are out there in the neighborhood?
"A. Yes. And that's the key deciding point. Because there's . . . several tagger groups that want to progress over to a gang, and it's not until they reach that point where they start showing violence to another gang, that's the true mark whether they are going to survive long enough to make it as a gang."
Pickett testified, "At the point where a tagger crew wants to be a gang and they start showing violence and start doing shootings and drive-by's, that's a key point for them, because that's all or nothing then. They have to continue on with that to make that gang level or they basically get shut down by the other gang."
Pickett was very familiar with the Val Verde Park gang. The Valle family, including Vicente Valle, were founding fathers of the gang and there was no better target for a drive-by shooting if a tagging crew wanted to become a legitimate street gang.
Pickett had heard of a group called Los Marijuanos Smokers ("LMS"). Most of their crimes involved vandalism or minor thefts, and they were considered a tagging crew. Pickett had talked to Casillas, Johnson and Cerda, all of whom said they belonged to a group called LMS. Casillas said his moniker was Puppet. Cerda said his moniker was Snaps, and Johnson said his was Casper. Johnson also said he had been "recently jumped in" to LMS. Pickett agreed that being "jumped in" is a mark "of a group of people out on the streets who start claiming gang membership": "Taggers don't jump in" because "they don't classify themselves as a gang."
"Q. In this case, did you find that Kyle Johnson . . . had been attacked by 18th Street gang members?
Pickett had testified 18th Street was a very prominent gang, one of the larger gangs in Los Angeles.
"A. Yes. While at a party on Katrina.
"Q. And did you also find that at some point, Kyle Johnson, as well as Peter Cerda, did a shooting at the VVP home with an AK-47?
"A. That is correct."
"Q. . . . One of [the LMS] members, Kyle Johnson, is beat up by some 18th Streeters. Is that right?
"A. Yes. That's what I have been told. In the backyard at the party, he was . . . bragging about his gang, and the 18th Street gang members were in what I consider significant numbers and confronted him in a fight."
Pickett opined that, in the aftermath of this fight, Casillas, Johnson and Cerda carried out the shootings at Katrina Place and Morning Circle "for the purpose of establishing themselves as a gang." The weapon they used was significant: "[A] high-powered rifle, AK-47, that's not a weapon used to inflict just pain or just injury. That is a high-powered weapon. That thing is done [sic]to kill. It will kill through multiple walls. . . . [I]t is the most pronounced weapon you can have on the street for doing the work of killing." Of particular note was the shooting at Morning Circle: "[T]he second house has nothing to do with the party. That is a rival. That is a gang that is an enemy. That's not even in correlation with the party." "So that is to build their stature for showing that they are capable of committing violence, willing to use it and to actually kill. That's a gang. That's at a level of pronouncing, we are no longer taggers. We are at a gang level, and we will take whatever action against our enemies or against anybody who disrespects us."
The following colloquy occurred:
"Q. . . . The fact that Kyle Johnson had been jumped into LMS, the fact that they are designating themselves as LMS, the fact that there are at least three individuals in LMS so far because [sic]Johnson, Casillas and Cerda, and the fact that they are retaliating for disrespect at the Katrina house and then shooting at a rival gang house . . . , do you have an opinion as to whether LMS, as of February 10th, is a criminal street gang?
"A. Yes. By all intents and purposes. They have done everything that they need to do to put themselves over on that level as a gang. They have . . . put themselves on a level and status of a gang. [¶] They are willing to call gang members out. They are willing to take on rivals. They are willing to shoot for disrespect and kill. I think they have put themselves at a status very quickly to that level of a gang."
2. Defense evidence.
Casillas testified he never told a police officer or anyone else that he belonged to a gang. He was not a gang member and he did not associate with gang members.
On the night of the shootings, he gave Erika and her sister a ride home from the party. Lopez was in the truck with them. During the ride, it was Lopez who noticed a friend walking down the street and yelled out, "Casper." Casillas had just met Johnson and Cerda that night.
Back at Lopez's house, Casillas heard that Johnson had been assaulted. Johnson and Cerda offered Casillas $20 for gas in exchange for a ride home. Casillas drove to Cerda's house, where Cerda got out and said to wait. Cerda then returned to the truck carrying something with two hands. He slid the object underneath Casillas's seat. At Marcos's house, Cerda asked to put the object into the pickup truck's toolbox.
After staying at Marcos's house for a while, they left with Casillas driving again. Johnson and Cerda wanted a ride home and Casillas agreed because they had already given him gas money. He just followed their directions about where to drive. At one point, Cerda had Casillas pull over and unlock the toolbox. Casillas testified Cerda pulled out a rifle, "put a clip in it and he pointed it to my head. And he's like, you're going to drive us, and you're not going to say anything." Cerda gave the gun to the White guy and Casillas was given driving directions. He drove Cerda and Johnson while they carried out the drive-by shootings. Casillas acknowledged shooting into a house was dangerous to those inside and that someone could be wounded or killed.
Casillas did not tell Detective Cooper about being threatened that night because he was scared for his life and Cooper never asked him about it. Casillas insisted he only agreed to drive Johnson and Cerda home in return for gas money; he did not agree to help them carry out the shootings. He never told his grandmother about Cerda putting a gun to his head and threatening him because he didn't want to worry her. When his grandmother told him to lie by saying he had been threatened by the gunmen, he did not tell her that's exactly what had happened because it didn't occur to him.
Casillas testified he suffers from a severe learning disability. Throughout his school years he had been provided with an aide because he "can't comprehend things right." After failing the California driver's license test six times, he was allowed to take a special test and he finally passed.
CONTENTIONS
1. Casillas's extra-judicial statement to Pickett was taken in violation of Miranda.
2. The convictions in counts 7 and 8 must be dismissed for lack of evidence.
3. There was insufficient evidence to support the attempted murder convictions.
4. The was insufficient evidence to sustain the criminal street gang findings.
5. There was a Crawford confrontation clause violation.
6. Defense counsel was ineffective for moving to dismiss the murder charge.
7. There was prosecutorial misconduct.
8. The jury was given a legally incorrect theory on attempted murder.
9. The jury was misinstructed on how to evaluate expert testimony.
10. The jury was misinstructed on the "kill zone" theory.
11. There was ineffective assistance of counsel.
12. There was cumulative error.
13. There was sentencing error.
DISCUSSION
1. There was no Miranda violation.
Casillas contends his convictions must be reversed because, in violation of his Miranda rights, Detective Pickett testified Casillas admitted belonging to a group called LMS and that his moniker was Puppet. This claim is meritless because Casillas made the challenged statements during a routine booking interview which did not require a Miranda warning.
Miranda v. Arizona (1966) 384 U.S. 436 .
a. Legal principles.
In Pennsylvania v. Muniz (1990) 496 U.S. 582 , a plurality of the Supreme Court acknowledged a so-called "booking exception" to the Miranda rule. "Although the recognition of a routine booking question exception to Miranda and the 'design' exception to the booking question exception are expressed by a mere plurality in Muniz, these principles are now considered settled. (See, e.g., U.S. v. Brown (8th Cir. 1996) 101 F.3d 1272, 1274 ['It is well-settled that routine biographical data is exempted from Miranda's coverage']; Presley v. City of Benbrook (5th Cir. 1993) 4 F.3d 405, 408, fn. 2 ['In the wake of Muniz, it has been universally accepted by courts, both federal and state, that a routine booking question exception to the Fifth Amendment exists'].) Indeed, California and federal courts applied a booking question exception long before it was recognized in Muniz. [Citations.]" (People v. Gomez (2011) 192 Cal.App.4th 609, 630, fn. omitted.)
"In determining whether a question is within the booking question exception, courts should carefully scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking questions or a pretext for eliciting incriminating information. [Citation.] Courts have considered several factors, including the nature of the questions, such as whether they seek merely identifying data necessary for booking [citations]; the context of the interrogation, such as whether the questions were asked during a noninvestigative, clerical booking process and pursuant to a standard booking form or questionnaire [citations]; the knowledge and intent of the government agent asking the questions [citations]; the relationship between the question asked and the crime the defendant was suspected of committing [citations]; the administrative need for the information sought [citations]; and any other indications that the questions were designed, at least in part, to elicit incriminating evidence and merely asked under the guise or pretext of seeking routine biographical information [citations]." (People v. Gomez, supra, 192 Cal.App.4th at pp. 630-631.)
"Significantly, the Muniz plurality noted an exception to the booking question exception: ' "[R]ecognizing a 'booking exception' to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions." ' [Citation.] The use of the phrase 'designed to elicit incriminatory admissions,' instead of the more objective 'reasonably likely to elicit an incriminating response' language . . . suggests that the intent of the interrogating officer is more important in evaluating the applicability of the booking question exception than in establishing interrogation generally." (People v. Gomez, supra, 192 Cal.App.4th at p. 629, fn. omitted.) Hence, "the booking question issue requires careful scrutiny of the facts and circumstances in each case" because "[w]hether the administrative purpose is a mere guise or pretext for questions actually designed to elicit incriminating responses is a close question." (Id. at pp. 635, 634.)
b. Discussion.
(1) Issue has been waived.
As noted, the "design exception" to the Miranda booking question exception requires the trial court to "carefully scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking questions or a pretext for eliciting incriminating information." (People v. Gomez, supra, 192 Cal.App.4th at p. 630.) But Casillas did not raise this issue below, and therefore he has forfeited any claim his statements to Detective Pickett violated Miranda. (See, e.g., People v. Rundle (2008) 43 Cal.4th 76, 116, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["defendant's entirely generic motion to exclude all of his statements to law enforcement officers, coupled with the absence of specific argument that defendant had invoked his right to silence at the end of the first interview, failed to preserve this claim for appeal"]: People v. Jones (1998) 17 Cal.4th 279, 299, fn. 1 [" 'it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention' "].)
At trial, Casillas objected on Miranda grounds only to the statements he made during his subsequent interview with Detective Cooper. His motion was denied and Casillas does not appeal that ruling.
People v. Lewis (2001) 26 Cal.4th 334, held a juvenile defendant waived a claim he had invoked his Fifth Amendment rights by telling a detective he wanted to speak to his mother: "Defendant has waived this claim by raising it for the first time on appeal. [Citation.] Notions of fairness and practicality require that the prosecution be given an opportunity to argue this issue during trial. Without such objection, the parties could not develop the issue or further examine witnesses." (Id. at p. 385.) "In short, because defendant failed to raise his claim at trial that defendant's request to speak to his mother constituted an invocation of his Fifth Amendment right, we are left with an incomplete record. Thus, we cannot speculate to facts that would have given rise to defendant's claim." (Id. at p. 386.)
The same is true here. The facts were not developed below and the question of Detective Pickett's intentions when he elicited Casillas's statement would be of crucial importance to deciding this Miranda claim. Casillas replies the failure of his trial attorney to raise the issue below constituted ineffective assistance of counsel, and he contends his convictions must be reversed for that reason. We disagree.
In order to succeed on an ineffective assistance of counsel claim, Casillas must show not only that defense counsel's performance was deficient, but also "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'. . . To establish prejudice he 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) "[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence." (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
Casillas argues "Pickett knew or should have known if he asked appellant about his association with LMS and whether appellant had a 'moniker' he was likely to get incriminating responses, which he did." Casillas asserts there is nothing in the record to indicate Pickett was engaged in anything other than an attempt to obtain inculpatory evidence: "[T]here was no evidence establishing Pickett conducted or even participated in the booking process. As there was no evidence Pickett questioned appellant to obtain any biographical data, the only reason for Pickett to interrogate appellant was for investigatory purposes." "Pickett . . . did not indicate his questions regarding a person's gang affiliation or moniker were needed for identification, to classify the inmate for jail security purposes, or for any administrative purpose."
At the same time, however, Casillas acknowledges "[h]e was in the process of being booked when Pickett questioned him." The record contains the following information about their encounter.
Pickett testified he spoke to Casillas immediately after his arrest. Asked what questions he put to Casillas, Pickett testified there was "[j]ust basically general conversation": "I didn't get into details regarding his interview and things like that. We were just basically [sic] booking information, stuff like that, at the booking cage. [¶] Q. Who else was there? [¶] A. I don't know. There was booking officers. There's jailers. There's everybody walking around." (Italics added.)
The trial court then sought a clarification:
"Detective Pickett, hold on a second. Let me make sure I understand what's going on. [¶] . . . [¶] So at the booking cage, that's when you engaged in small talk and [Casillas] told you that he was an LMS gang member?
"The Witness: Correct.
"The Court: LMS member. I apologize. [¶] Thereafter, he was walked into an interview room by you and Detective Sergeant Cooper. And at that point in time, was your interview with him finished and Detective Cooper's began?
"The Witness: Correct." (Italics added.)
Moreover, on cross examination, Pickett testified about the jail security implications of an arrestee's gang affiliation. He indicated that, while in-field self-admissions of gang membership are not usually sufficient by themselves to generate a gang label, that same information can be sufficient if "they are in a custody environment . . . and say that they are with a particular gang, and for their protection, may need to be housed separately. [¶] So that way, they will classify them as a gang member based on just their self-admittal alone under a classification process within the L.A. custody facility."
Thus Pickett's testimony indicates that, although he was involved in the case as an investigating detective, his interaction with Casillas might have been confined to obtaining routine booking information which, as a matter of course, included a question about Casillas's possible gang affiliations. Inasmuch as Casillas has the burden of proof in an ineffective assistance of counsel context, and there was arguably nothing in the record to counter these indications the routine booking exception to the Miranda rule applied, we conclude Casillas has not demonstrated he could have shown Miranda error had defense counsel not been ineffective.
Hence, we reject Casillas's claim of Miranda error.
2. The attempted murder convictions in counts 7 and 8 must be reversed.
Casillas contends, and the Attorney General concedes, that the premeditated attempted murder convictions in counts 7 and 8 must be reversed because there was no evidence the named victims in those counts had been at the Katrina Place house during the shooting. We will vacate those convictions.
3. There was sufficient evidence of premeditated attempted murder.
Casillas contends there was insufficient evidence to sustain any of the remaining premeditated attempted murder convictions. This claim is meritless.
a. Legal principles.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, 'without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.' [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person 'must share the specific intent of the [direct] perpetrator,' that is to say, the person must 'know[] the full extent of the [direct] perpetrator's criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' [Citation.]" (People v. Lee (2003) 31 Cal.4th 613, 624.)
Section 664 provides: "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: [¶] (a) If the crime attempted is . . . . willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole."
" 'The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice – a conscious disregard for life – suffices. [Citation.]' [Citation.] In contrast, '[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 739.) "When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person 'must share the specific intent of the [direct] perpetrator,' that is to say, the person must 'know[] the full extent of the [direct] perpetrator's criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' [Citation.]" (People v. Lee, supra, 31 Cal.4th at p. 624.)
"[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. . . .' " (People v. Smith, supra, 37 Cal.4th at p. 741.) "An inference of intent to kill drawn on evidence of a purposeful shooting with lethal force under all the attendant circumstances can support a conviction of attempted murder even without evidence of motive. [¶] . . . [T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although . . . where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive – the very act of firing a weapon ' "in a manner that could have inflicted a mortal wound had the bullet been on target" ' is sufficient to support an inference of intent to kill." (Id. at p. 742.)
b. Discussion.
(1) There was sufficient evidence Casillas intended to kill the attempted murder victims.
We conclude there was sufficient circumstantial evidence showing Johnson, Cerda and Casillas intended to kill all the people occupying the two houses shot up by Johnson and Cerda.
The Attorney General argues there was no need to prove Casillas acted with the specific intent to kill because "the jury could find [him] vicariously guilty of premeditated attempted murder under the natural and probable consequence[s] doctrine." However, as Casillas rightly points out, the jury was never instructed on the natural and probable consequences doctrine as it related to attempted murder, but only as it related to murder.
There is no doubt these were purposeful shootings. The perpetrators drove to each location, with Johnson and Cerda taking turns in the back of Casillas's pickup truck to do the shooting. Casillas told both Detective Cooper and his grandmother that he knew his accomplices planned to carry out a drive-by shooting. The jury reasonably disbelieved Casillas's testimony that Cerda forced him to do the driving at gunpoint.
There is also no doubt the weapon used was lethal. The evidence showed the perpetrators used a military assault rifle, a weapon so powerful its bullets were known to penetrate the walls of houses. At Katrina Place, it appears that almost all the bullets fired did penetrate the house. And at Morning Circle, although only one bullet actually penetrated the house, the other bullets had embedded themselves "deep inside the [exterior] stucco of the house."
Finally, the evidence presented a number of motives for the shootings. Detective Pickett testified the Katrina Place shooting was intended as retaliation for Johnson's having been assaulted there earlier in the evening. This retaliation motive remained valid even if the jury did not credit Pickett's additional testimony there had been a gang aspect to the Katrina Place shooting because the people who assaulted Johnson belonged to the 18th Street gang. Pickett testified the Morning Circle shooting was intended to announce LMS's arrival as a legitimate street gang. And entirely apart from Pickett's testimony, Casillas himself provided another motive when he told his grandmother and Cooper that he had participated because he was given $20 worth of gasoline.
That the jurors may not have credited this portion of Pickett's testimony is indicated by the fact they returned "not true" findings on the gang enhancement allegations related to the Katrina Place shooting.
Casillas argues all this evidence merely showed there had been an intent to shoot at the houses, not an intent to kill the occupants: "Nowhere . . . did appellant indicate he knew Johnson and Cerda intended to kill anyone, or commit any other offense than shooting at the houses. Shooting at an inhabited dwelling is a separate and distinct crime in violation of section 246. Merely shooting at a house cannot serve to establish beyond a reasonable doubt an 'intent to kill.' " However, to paraphrase Smith, in the court below Casillas "offered nothing to undercut the force of the inference, drawn by the jury on the People's evidence, that defendant acted with intent to kill . . . ." (People v. Smith, supra, 37 Cal.4th at p. 743.) Casillas testified he had not intended to even shoot at a building because his entire participation in the incident had been coerced when Cerda put a gun to his head. But "[t]he jury disbelieved him," and Casillas's "defense at trial thus furnishe[d] no support for his claim on appeal that the People's evidence was insufficient to establish his intent to kill . . . ." (Ibid.)
Casillas also argues his second degree murder conviction for the killing of Salazar constituted an acquittal of first degree murder, which was inconsistent with his convictions for premeditated attempted murder. However, "[s]ince 1927 our courts have followed the general rule and viewed an inconsistent acquittal as the product of confusion or an act of mercy on the part of the jury, of which an appellant is not permitted to take further advantage. . . ." (People v. Pahl (1991) 226 Cal.App.3d 1651, 1657; see People v. Santamaria (1994) 8 Cal.4th 903, 911 ["It is . . . settled that an inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both."].)
(2) There was sufficient evidence to sustain the attempted murder convictions on a "kill zone" theory.
Alternatively, there was also sufficient evidence to sustain Casillas's premeditated attempted murder convictions on the basis of the so-called "kill zone" theory.
Casillas argues there was insufficient evidence to sustain this theory: "The evidence adduced at trial established not all the named victims were within the 'kill zone', that the shooters did not create a 'kill zone' at the Morning Circle residence, and the penetration of one bullet into a residence cannot establish a 'kill zone' to support a finding of liability for multiple victims. [¶] As such the evidence was legally insufficient to support the jury's conviction of premeditated attempted murder on [counts 5, 6, 12, and 14-24]" We disagree.
As explained in People v. Bland (2002) 28 Cal.4th 313: "The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them." (Id. at p. 329.) Concurrent intent exists " 'when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.' " (Id. at pp. 329-330.)
People v. Vang (2001) 87 Cal.App.4th 554, is the seminal case involving a drive-by shooting which targets an occupied residence. The defendants there were convicted of murder and multiple attempted murder counts after carrying out drive-by shootings at two residences. On appeal, the defendants argued the attempted murder evidence was deficient because it failed to prove they intended to kill any of the inhabitants other than two individuals who had been specifically targeted. The trial court rejected this claim, finding "[t]he jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . Stated briefly, section 188 provides that malice aforethought 'is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' In this case, defendants manifested a deliberate intention to unlawfully take the lives of others when they fired high-powered, wall-piercing, firearms at inhabited dwellings. The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harm's way, but fortuitously were not killed." (Id. at pp. 563-564.)
Casillas tries to distinguish Vang because in that case more guns were used, more shots were fired, and more damage was inflicted on the residences. Casillas argues no kill zone at all had been created at Morning Circle because only one bullet penetrated the residence, and that at Katrina Place some of the occupants were outside the kill zone because no bullets came close to hitting them. Casillas asserts "[t]here was no competent evidence the AK-47 used in appellant's case was a 'wall piercing weapon,' " and that "[u]nlike Vang, there was no evidence the shooters had an intended victim."
We are not persuaded. Certainly the damage inflicted in Vang was quite extensive. But so was the damage inflicted here. At Katrina Place, witnesses heard up to 20 gunshots and 16 spent cartridge case were later recovered. Bullets penetrated both floors of the house, killing Salazar while he was sitting in the dining room, very nearly killing Maria who was also in the dining room, and coming close to hitting several children and adults who were in bedrooms on the second floor. At Morning Circle, bullets were fired from the top of the house to the bottom; one bullet went through the front door and at least eight bullets were embedded in exterior parts of the house. The perpetrators are not relieved of responsibility because the walls at Morning Circle happened to be stronger than the walls at Katrina Place. Casillas fails to cite any case law supporting his implicit assertion Vang established a minimum amount of physical destruction needed in order to invoke a kill zone analysis.
In Vang, "[t]wenty-one shell casings from an AK series assault rifle and five shotgun shells were found at the scene. At least 50 bullet holes dotted the front of the duplex, with the majority focused on Chang Her's unit. 'In fact, there was so much gunfire damage, it was hard to follow each and every hole.' The damage spanned a distance of 25 feet, ranging from three inches to six and one-half feet above ground. There was also extensive gunfire damage throughout each unit's interior." (People v. Vang, supra, 87 Cal.App.4th at p. 558.)
Contrary to Casillas's assertions, there was indeed "competent evidence" the AK-47 was a wall-piercing weapon. Keil testified the rifling on the bullet fragments he recovered from the shooting scene indicated the bullets had been fired from an AK-47 type rifle, which he described as having the capacity of penetrating the exterior walls of houses. Pickett described the AK-47 as "a high-powered weapon" used for killing: "It will kill through multiple walls. . . . [I]t is the most pronounced weapon you can have on the street for doing the work of killing."
There did not have to be evidence the perpetrators saw any of the occupants. (See People v. Adams (2008) 169 Cal.App.4th 1009, 1023 ["Whether or not the defendant is aware that the attempted murder victims were within the zone of harm is not a defense, as long as the victims actually were within the zone of harm."].) Nor does it matter that no particular victim had been targeted for assassination. As People v. Stone (2009) 46 Cal.4th 131, explained: "The mental state required for attempted murder is the intent to kill a human being, not a particular human being." (Id. at p. 134.) "[N]othing in either Vang or Bland suggests that if they had shot at the houses simply to kill everyone who happened to be present, without any primary target, then no conviction whatever for attempted murder would be possible. Although a primary target often exists and can be identified, one is not required." (Id. at p. 140.)
The size of the zones of harm created by the perpetrators here was a factual issue for the jury based on the nature and scope of the attacks. Based on the number of bullets fired, the wall-piercing nature of the bullets, the extensive areas of the homes targeted, and the time of day at which the attacks occurred, the jury could have reasonably concluded the perpetrators intended to kill everyone inside both houses.
4. Gang enhancement findings were supported by sufficient evidence.
Casillas contends the gang enhancement findings on counts 15 through 24 must be reversed because there was insufficient evidence to prove LMS was a criminal street gang. This claim is meritless.
a. Legal principles.
As we have explained, "Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
As to the "primary activity" element, "the trier of fact must find that one of the alleged criminal street gang's primary activities is the commission of one or more of certain crimes listed in the gang statute. In People v. Gardeley [(1996)] 14 Cal.4th 605 . . . , that requirement was satisfied by the testimony of a police gang expert who expressed his opinion that the primary activities of the group in question were drug dealing and witness intimidation, both statutorily listed crimes." (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) "The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities. [Citations.]" (People v. Duran, supra, 97 Cal.App.4th at p. 1465.)
b. Discussion.
Casillas in effect makes three related claims regarding the adequacy of the gang enhancement evidence: Detective Pickett's testimony was fabricated; if not fabricated, it was unbelievable; if not unbelievable, it was insufficient to prove the gang enhancement.
(1) There was no evidence Pickett committed perjury.
Casillas's perjury claim is based on the fact that, at the preliminary hearing, Pickett testified Casillas belonged to a gang called LMS which turned out to be a different LMS gang than the one Pickett testified about at trial.
At the preliminary hearing, Pickett testified LMS was a transplant gang from Los Angeles with about 100 members, a half dozen of whom were in the Palmdale area. The gang's primary activities were automobile theft and felony vandalism, and the two predicate felonies Pickett identified were both for felony vandalism. At trial, Pickett testified about a different LMS gang which consisted of only three members: Casillas, Cerda and Johnson. The prosecutor initially presented this evidence only to demonstrate the perpetrators' motive and intent for carrying out the shootings, not to prove up the gang enhancement, because there were no past predicate crimes that could be attributed to the "correct" LMS gang. Subsequently, however, the prosecutor informed the trial court he was going to rely on Pickett's trial testimony about the currently charged crimes to also prove the gang allegations.
Based on this background, Casillas argues that Pickett, in his trial testimony, "concocted a mythical tale about how LMS magically and suddenly transformed from a tagger group into a 'criminal street gang' at the very instant the shots were fired. Pickett's transformation theory was a fantastical story tailored to fit the needs of this case and to secure conviction. [¶] To put it bluntly, Pickett lied."
But this claim is supported by no more than Casillas's own speculation that Pickett must have lied. Casillas does not point to any part of the record corroborating this assertion, other than the fact Pickett's trial testimony differed from his preliminary hearing testimony, a fact adequately explained by his having made an innocent mistake.
(2) Pickett's testimony was believable.
Casillas contends Pickett's testimony about how LMS evolved from a tagging crew into the criminal street gang was unbelievable, particularly because Pickett's version had LMS "instantly transforming or morphing [from a tagging crew] into a criminal street gang."
Casillas acknowledges there are examples in the case law of experts testifying that particular tagging crews evolved into criminal street gangs. (See, e.g., People v. Garcia (2008) 168 Cal.App.4th 261, 277 [photographs of "TNS members flashing their 211 sign and brandishing guns showed they undertook to 'elevate' the status of TNS from tagging crew to a gang"]; People v. Garcia (2007) 153 Cal.App.4th 1499 [Devious Hoodlums began as tagging crew in late 1980s; by 2004 it was a gang]; People v. Hodgson (2003) 111 Cal.App.4th 566 [Harvard Street Gang began as tagging crew and over time became street gang by committing robbery, burglary and murder].)
However, Casillas argues such cases don't count because they suggest "a process or a development over a period of time," and thus do not support Pickett's testimony a tagging crew could "instantaneously graduate or evolve into a criminal street gang." But there was nothing inherently improbable about Pickett's testimony that, in this case at least, the transformation from tagging crew to street gang took place over an extremely short period of time. Pickett testified attacking another gang in the neighborhood was "the key deciding point. Because there's . . . several tagger groups that want to progress over to a gang, and it's not until they reach that point where they start showing violence to another gang, that's the true mark whether they are going to survive long enough to make it as a gang." He opined LMS "put themselves at a status very quickly to that level of a gang." Pickett's "instantaneous transformation" theory was not unbelievable; some fires smolder for a long time before bursting into flame, while others ignite almost instantaneously, but no one would argue only the former constitute "real" fires.
As for Pickett's apparently superficial knowledge of LMS's prior activities, the Attorney General points out that, although Pickett "could not have had much knowledge or experience with LMS because LMS was not an established gang at the time of the instant crimes," his testimony demonstrated he had heard LMS was a tagging crew:
"Q. Have you ever heard of a group out here called LMS?
"A. Yes.
"Q. What does LMS stand for?
"A. Los Marijuanos Smokers.
"Q. What do you know of Los Marijuanos Smokers?
"A. They were initially . . . not what we call on our radar. We have certain gangs we target . . . . [¶] That was not one of the groups we were looking at initially. Most of their crimes and stuff were in the area of vandalism, small thefts, and that was handled by [the] regular detective bureau. They were basically considered a tagger group."
Casillas complains Pickett's testimony was based on hearsay and unreliable assumptions. But it is apparent Pickett received this information from reliable sources: from speaking to colleagues and to the three LMS members themselves. (See People v. Gonzalez (2006) 38 Cal.4th 932, 944, 949 [gang expert opinion may be based on citizen informants, police reports and gang member contacts because these are reliable bases for opinion]; People v. Hill (2011) 191 Cal.App.4th 1104, 1124 ["gang expert may . . . rely on the hearsay statements of gang members"].)
(3) Pickett's testimony established all elements of the gang enhancement.
Casillas contends that, even if Pickett's testimony were truthful and believable, it failed to establish all the required elements of the gang enhancement (§ 186.22, subd. (b)). We disagree.
Casillas argues the evidence did not prove the existence of a "gang" because the statute requires a minimum of three gang members, and the only evidence of Casillas's membership came from his Miranda-violative admission to Pickett that he belonged to LMS. However, as explained ante, Casillas's claim that this evidence was improperly admitted is meritless.
Casillas argues there was no evidence LMS's primary activities included any of the statutory enumerated offenses because "the charged crimes were a one-time occurrence." But that's only because the entire gang was arrested in the immediate aftermath of having committed their first murder and attempted murders.
Casillas argues that, because the prosecution theorized LMS did not exist as a gang prior to the shootings, there were no predicate offenses establishing a pattern of gang behavior. Not so. "[T]he requisite 'pattern' can also be established by evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member." (People v. Loeun (1997) 17 Cal.4th 1, 5.)
In sum, we conclude there was sufficient evidence to sustain the gang enhancement findings.
Casillas also contends that, because the prosecution failed to prove that counts 15-24 were committed for the benefit of a criminal street gang, the firearm enhancements are inapplicable. This claim merely restates Casillas's contention, rejected here, that there was insufficient evidence to support the gang enhancement findings on these counts.
5. There was no Crawford violation.
Casillas argues his Sixth Amendment confrontation clause rights, as construed by Crawford v. Washington (2004) 541 U.S. 36 , were violated because there was testimony about the police statements made by Johnson and Cerda, although neither of them testified at Casillas's trial. This claim is meritless. These statements came in as part of the information relied on by Detective Pickett in forming his opinions as a gang expert.
As People v. Gardeley, supra, 14 Cal.4th 605, explained: "Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. . . . [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] 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.]" (Id. at p. 618.)
"Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert's opinion. [Citations.] [¶] Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes. In fact, Crawford expressly stated that the confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' [Citation.]" (People v. Cooper (2007) 148 Cal.App.4th 731, 747.) This rule has been applied to gang expert testimony. (See People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
There was no Crawford violation.
6. There was no ineffective assistance arising out of defense counsel's motion to dismiss the murder charge.
Casillas contends he was denied the effective assistance of counsel because his attorney asked the trial court to dismiss the murder count. He asserts counsel's motion merely served to alert the prosecutor that he had forgotten to furnish proof of the alleged murder victim's cause of death, thus allowing the People to avoid an inevitable acquittal for lack of evidence. This claim is meritless.
a. Background.
After the prosecution rested, defense counsel moved to dismiss count 1 on the ground there had been no evidence proving the cause of Salazar's death. The trial court said the motion was "well taken," and asked the prosecutor: "[W]ere you guys supposed to enter into a stipulation?" The prosecutor replied, "We have a stipulation, which we generally have done at the end of trial. So that's why I haven't done that. [¶] I have talked to counsel before about stipulating to the coroner's cause of death. He agreed. And I believe I even told the court at one point that's what we were going to do." The trial court acknowledged that was so. Defense counsel then said, "I am not trying to be under-handed, but it's my duty to make that motion." The court agreed it was, and then said: "I mean, people do things differently. I always used to do it before I rested, but that's just me. [¶] So here's what we are going to do. We're going to bring the jury in, enter into that stipulation that both of you have already discussed. At that point, you can rest."
Defense counsel objected to reopening the People's case because it would prejudice Casillas, but the trial court ruled: "[I]t seems to me that this was something that was just overlooked. So I'll allow the People to reopen, over defense objection." The parties then entered into a stipulation, in front of the jury, establishing the cause of death as a gunshot wound to the back of the victim's head.
b. Discussion.
Casillas argues defense counsel should have remained silent because "the matter would have gone to the jury with no evidence victim Gerardo Salazar had died or that his death was connected to the shooting at Katrina Place." Casillas argues that making the dismissal motion constituted ineffective assistance of counsel because it sabotaged his defense. We disagree.
Section 1093 sets forth the proper order in which a trial shall proceed. Subdivisions (c) and (d) provide: "(c) The district attorney, or other counsel for the people shall then offer the evidence in support of the charge. The defendant or his or her counsel may then offer his or her evidence in support of the defense. [¶] (d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit [sic] them to offer evidence upon their original case." Section 1094 provides: "When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order prescribed in Section 1093 may be departed from."
"Courts have interpreted sections 1093 and 1094 as giving a trial court 'broad discretion to order a case reopened and allow the introduction of additional evidence [citations].' [Citation.] 'No error results from granting a request to reopen in the absence of a showing of abuse. [Citation.]' [Citation.]" People v. Riley (2012) 185 Cal.App.4th 754, 764.) Riley held the trial court properly allowed the People to reopen in order to present evidence the .47 grams of marijuana found in the defendant's purse constituted a usable amount: "[W]e conclude that section 1118.1 [motion for acquittal] does not place a limitation on the trial court's discretion under sections 1093 and 1094 to permit either party to reopen its case for good cause and when justice so requires. The purpose of section 1118.1 is to provide a procedure by which a defendant may promptly terminate a fatally deficient prosecution, not to provide the defendant with a tactical trap when the prosecution inadvertently fails to present evidence in its possession." (Id. at p. 766.)
The Attorney General argues that in this case "the record shows, the prosecutor had not forgotten to prove the cause of death and did not need to be alerted by defense counsel about this element of the murder charged in count 1. In fact, the prosecutor had already agreed with defense counsel about stipulating to the cause of death and was planning to enter this stipulation on the record at the end of the evidentiary portion of the trial. Thus, defense counsel's dismissal motion merely forced the parties and the trial court to deal with the stipulation at an earl[ier] portion of the trial. [¶] Even if defense counsel had not made the dismissal motion and even if the prosecutor had not offered the stipulation until the end of trial, there is no doubt the trial court would have . . . allowed the prosecution to reopen its case and read the stipulation on the record before the case went to the jury."
We agree. Casillas's claim fails because, even assuming arguendo there was defective performance, he cannot show any resulting prejudice. It is clear the trial court properly considered this a mere oversight which warranted remedy by granting the prosecutor's motion to reopen.
7. There was no prosecutorial misconduct.
Casillas contends the prosecutor committed misconduct by urging the jury to ignore the trial court's instructions, arguing facts not in evidence, and suborning perjury. These claims are meritless.
a. Legal principles.
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights – such as a comment upon the defendant's invocation of the right to remain silent – but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citations.]" (People v. Riggs (2008) 44 Cal.4th 248, 298.)
" ' "[T]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom." ' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 752.) "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) "[C]onduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " (People v. Espinoza (1992) 3 Cal.4th 806, 820.) "When we review a claim of prosecutorial remarks constituting misconduct, we examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief complained of. [Citation.]" (People v. Osband (1996) 13 Cal.4th 622, 689.)
b. Prosecutor did not encourage jury to disregard law or jury instructions.
Casillas claims the prosecutor trivialized the aiding and abetting requirements by telling the jury to ignore the trial court's instructions and instead follow the prosecutor's "simpler version," a version which omitted the specific intent element of vicarious accomplice liability. Not so.
During closing argument, the prosecutor argued: "This is an issue of aiding and abetting. And as an aider and abettor, you are responsible for the crimes that your cohorts commit. [¶] The judge has gone over this. I am just going to go over it briefly, because I kind of want to explain some of this to you. Because honestly, you read it, and it just ends up being gobbly gook. I'm going to try to break it down so it's a little easier. I'm going to give you a simpler version. [¶] A person is an aider and abettor if he knows of the perpetrator's unlawful purpose. Okay. So that means, look, if there are two people involved and you know what the other guy is going to do, and you help him somehow, you are liable for what he does."
Casillas complains that "[u]nder the prosecutor's 'simpler version' if the jury concluded appellant knew of the shooters['] unlawful purpose, which was shooting at the house, and he drove them, then the jury could find appellant guilty of the murder and premeditated attempted murder charges without determining the specific intent element." But, as the Attorney General points out, the prosecutor went on to specifically tell the jury Casillas was guilty as an aider and abettor "if we show you" he knew his accomplices intended to commit the shooting, he "intended to aid and abet" them in carrying out the shooting, and he did in fact aid and abet the shooting. (Italics added.)
Although the prosecutor should not have referred to the aiding and abetting jury instruction as "gobbly gook," he never told the jury to ignore the instruction or that specific intent to aid and abet was not a required element.
c. Prosecutor did not argue extra-judicial facts.
Casillas contends the prosecutor committed misconduct by arguing facts not supported by the evidence presented at trial and making a series of incorrect assertions. However, Casillas is either wrong about the record or the prosecutor's misstatements were too trivial to have mattered. We will cite each claim and answer it, in order.
(1) Johnson had been jumped into LMS. The prosecutor told the jury: "[Pickett's] indication is that LMS, at this point, is a gang. And the reason for that is this. Not only do they have a common sign or symbol, which is LMS . . . , but now he has indicated that we know that one of these members was actually jumped in. Kyle Johnson was jumped into LMS." But this statement was correct. Pickett testified Johnson told him he had been "jumped in" to LMS.
(2) Johnson had been assaulted by 18th Street gang members at the Katrina Place party. This was a legitimate assertion because Pickett testified he found out Johnson had been attacked by 18th Street gang members at the party on Katrina Place.
(3) Johnson told his "friends" about having been assaulted. But it was a fair inference the other people at Marcos's house that night, who shared crystal methamphetamine, and certainly Casillas, who acted as the driver for the shootings, were "friends" as opposed to strangers or mere passing acquaintances. And even if not, this characterization by the prosecutor could hardly have affected the jury's verdicts.
(4) Cerda and Johnson used a "military assault rifle" to carry out the shootings. It was a fair inference from the expert testimony that the gun used was an AK-47 type of military assault rifle.
(5) The murder victim, Salazar, was not part of the group of people who had assaulted Johnson during the party at Katrina Place. However, Adriana Rodriguez testified she had gone to Katrina Place with Salazar that night, and by the time they arrived, the party was already over.
(6) Salazar was not a gang member. The prosecutor characterized Salazar as "a hard working, 22-year-old man. [¶] He worked for a living. He didn't steal things. He wasn't in a gang. He was a taxi driver." This assertion was either a fair inference from the evidence or too trivial to have been prejudicial.
(7) Ten people assaulted Johnson at the Katrina Place party. Although the record is silent as to the exact number of people who attacked Johnson, Pickett testified the 18th Street gang members were in "significant numbers," and Casillas told Detective Cooper that Johnson had been beaten by "a ton of fools."
(8) LMS was "putting in work for themselves" and "hitting up" the 18th Street gang and VVP. The prosecutor said: "[Casillas] knows that Val Verde Park is one of the most established gangs out there, and this is what LMS is doing. They are putting in work for themselves. They are hitting up not only 18th Street, but they are hitting up Val Verde Park. They are shooting up the founders of Val Verde Park, because they want to become not only legitimate, they want to become feared." Pickett testified he learned Johnson had been beaten after bragging about LMS in front of 18th Street gang members at the Katrina Place party, and Casillas told Cooper that Morning Circle had been targeted because it was a house associated with the rival VVP gang. Based on this testimony, the prosecutor legitimately argued the shootings had been gang-related and carried out for the benefit of LMS.
d. There was no evidence the prosecutor suborned perjury
Casillas contends the prosecutor conspired with Detective Pickett to present false testimony about LMS evolving from a tagging crew into a gang. This claim is meritless.
As discussed, ante, the record shows no more than that Pickett made a mistake at the preliminary hearing by confusing Casillas's group with another group of the same name. This does not demonstrate Pickett's trial testimony was fabricated or, if it were, that the prosecutor had conspired with him to present false testimony. Casillas supports this claim with nothing more than his speculative belief the prosecutor knowingly presented perjured testimony. This is insufficient. (See People v. Valdez (2004) 32 Cal.4th 73, 126-127 [appellate record failed to demonstrate prosecutor witness committed perjury].)
In sum, we conclude there was no prosecutorial misconduct.
8. Jury was not given a legally incorrect theory.
Casillas contends his attempted murder convictions must be reversed because the jury was presented with both legally correct and legally erroneous theories of attempted murder. This claim is meritless.
The basis for this claim is not a matter of conflicting jury instructions, but a statement by the prosecutor during closing argument that the jury could rely on a natural and probable consequences theory in order to convict on the attempted murder counts, even if it did not find a specific intent to kill. Hence, Casillas's reliance on People v. Guiton (1993) 4 Cal.4th 1116, 1130 (jury instructed on two theories, one of which was factually inadequate), and People v. Morgan (2007) 42 Cal.4th 593, 607-609 (instructions included a legally incorrect theory about asportation distance needed to commit kidnapping), is misplaced.
The prosecutor had argued: "But even if you find that there was no specific intent to [kill], you can still find that there was attempted murder if you are convinced that the actions that they took that night, pulling out an AK and shooting into these homes, was a dangerous act. That the shooter knew it was dangerous, but he did it anyway."
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The jury was clearly instructed that intent to kill was a necessary element of attempted murder: "To prove that the defendant is guilty of attempted murder, the People must prove that: the defendant took a direct but ineffective step toward killing another person; and, the defendant intended to kill that person." The jury was also told: "If you believe that the attorneys' comments on the law conflict[ ] with my instructions, you must follow my instructions."
9. Jury was properly instructed on how to evaluate expert testimony.
Casillas contends the trial court did not properly instruct the jury on how to evaluate Detective Pickett's expert testimony. This claim is meritless.
The trial court instructed the jury with CALCRIM No. 332 as follows:
"Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. [¶] In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable or unsupported by the evidence."
Casillas argues the trial court also should have given this optional, bracketed portion of CALCRIM 332: "An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion."
Casillas asserts this optional instruction was required because a Bench Note attached to CALCRIM No. 332 states: "When expert testimony is received at trial the court must sua sponte instruct the jury on evaluating the expert's testimony. (Pen. Code, § 1127b.) [¶] Give the bracketed paragraph beginning, 'An expert witness may be asked a hypothetical question,' if an expert witness responded to a hypothetical question. [¶] Give the bracketed paragraph beginning, 'If the expert witnesses disagreed with one another,' if there is conflicting expert testimony."
Casillas argues: "In appellant's case, the jury was not so instructed, and not having been told it was their obligation to determine if the assumed facts had been proved, they could not have subjected Pickett's so-called expert opinion to the rigorous scrutiny it deserved." Casillas also asserts this error was prejudicial: "[T]he jury may have thought it could not question the veracity of an assumed fact presented in a hypothetical and had to accept the fact as true."
CALCRIM No. 332, as given, specifically required the jury to determine the truth and accuracy of all information relied on by an expert witness. This language would necessarily include any information set forth in a hypothetical question because the expert had to rely on the content of the question in order to render an opinion. CALCRIM No. 332 also clearly told the jury it could disregard any expert opinion not supported by the evidence, and other witness credibility instructions told the jury to disregard testimony or opinions not supported by evidence.
The statutory requirement (§ 1127b) merely says: "When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given." (Italics added.)
Casillas cites no case holding a failure to give the bracketed portion of CALCRIM No. 332 constitutes error. Moreover, it is apparent this jury did know it could question the veracity of an assumed fact presented in a hypothetical question because it made a not-true finding on the gang enhancement allegations associated with the Katrina Place shooting.
10. The kill zone instruction was not improper.
Casillas contends his convictions must be reversed because the trial court improperly instructed the jury regarding the kill zone concept with "an older version of CALCRIM No. 600 which has been deemed ambiguous by our supreme court." This claim is meritless.
The trial court instructed: "A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or kill zone. In order to convict the defendant of the attempted murder of the victims named in counts 2 through 24, the People must prove that the defendant not only intended to kill someone, but also either intended to kill the victims named in counts 2 through 24 or intended to kill anyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill the victims named in counts 2 through 24, or intended to kill someone by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the victims named in counts 2 through 24."
Casillas argues this instruction was ambiguous and that it has since been amended to substitute the word "everyone" for the word "anyone." But People v. Stone, supra, 46 Cal.4th at p. 138, fn. 3, concluded: "In context, a jury hearing about the intent to kill anyone within the kill zone would probably interpret it as meaning the intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill zone." That is particularly true here, where the trial court used both "anyone" and "everyone" in its instruction.
Casillas also complains the instruction allowed a conviction even if the victims were actually outside the kill zone. Casillas concedes our Supreme Court has not required the term "kill zone" to be further defined for the jury (see People v. Perez (2010) 50 Cal.4th 222, 232 [there is no set definition for "kill zone," which is "necessarily defined by the nature and scope of the attack" in any given case]), but he argues a further definition was needed here because the shootings occurred in "multi-roomed, multi-bedroom two story house[s,] portions of which were not penetrated by gunfire. Firing at one portion of a residence does not make the entire residence a kill zone." But it was for the jury to determine whether the evidence showed all the named victims were within the zone of harm created by the perpetrators.
11. Casillas did not suffer ineffective assistance of counsel.
In addition to re-alleging all his previous complaints about defense counsel's performance, Casillas contends he was denied effective assistance because counsel's closing argument was too short (only four and half transcript pages) and it relied on the theory Casillas's learning disability had affected his ability to form the specific intent required for the attempted murder convictions.
But defense counsel was stuck with a client who testified he had been coerced into driving Johnson and Cerda, a defense completely undermined by Casillas's statements to both his grandmother and Detective Cooper. Indeed, in these statements Casillas admitted he had voluntarily driven the gunmen so they could carry out the drive-by shootings. In this situation, defense counsel may have reasonably concluded the best he could do was to suggest Casillas's learning disability had affected his ability to form the required specific intent and caused him to be easily manipulated by both the gunmen and Detective Cooper.
12. There was no cumulative error.
Casillas contends the cumulative prejudicial effect of the various trial errors he has raised on appeal requires the reversal of his conviction. However, we have found at most only a few insignificant errors that were clearly harmless. Casillas's trial was not fundamentally unfair. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056 ["Defendant contends the cumulative prejudicial effect of the various errors he has raised on appeal requires reversal of the guilt and penalty judgments. We have rejected his assignments of error, with limited exceptions in which we found the error to be nonprejudicial. Considered together, any errors were nonprejudicial. Contrary to defendant's contention, his trial was not fundamentally unfair, even if we consider the cumulative impact of the few errors that occurred."].)
13. Sentencing errors must be corrected.
Casillas contends, and the Attorney General agrees, there were several sentencing errors made by the trial court. Because one of those errors directly affects the length of Casillas's prison term, we will remand to the trial court for resentencing. a. Background.
Casillas was initially sentenced on October 28, 2010. The trial court used count 1, the second degree murder conviction, as the base term, imposing a 15 years-to-life term for the murder, with a consecutive 25 years-to-life term for a section 12022.53, subdivision (d) enhancement (discharging a firearm and causing death). On count 2 (one of the premeditated attempted murder convictions), the trial court imposed a life term for the attempted murder, a 15-year minimum term for the gang enhancement (§ 186.22, subd. (b)(5)), plus a 25-year firearm use enhancement (§ 12022.53, subd. (d)), for a total term of 40 years to life on count 2. Count 2 was then made to run consecutive to count 1, for a total sentence of 80 years to life. The sentences on all the remaining premeditated attempted murder convictions were ordered to run concurrent with this 80 years-to-life term.
This sentence was recalled, however, because it contained errors and Casillas was resentenced on November 30, 2010. At that time, count 1 was reduced to a term of 15 years to life because the trial court recognized the gang and firearm use enhancements for the Katrina Place shootings had been rejected by the jury. The court then used count 15, one of the premeditated attempted murder convictions arising out of the Morning Circle shootings, to impose a life term plus a 15-year minimum term for the gang enhancement and a 20-year firearm use enhancement (§ 12022.53, subd. (c)), for a term of 35 years to life, which was run consecutive to count 1 for a total sentence of 50 years to life. The sentences on all the remaining counts were again ordered to run concurrent with this 50 years-to-life term.
b. Discussion.
Although the trial court corrected the error as to count 1 by recognizing the jury had returned not-true findings on the gang and firearm use enhancement allegations, counts 2-6 and 9-14, contained the same error. The concurrent enhancement terms on these counts must be vacated and the abstract of judgment corrected to reflect that no gang or firearm enhancements were found true as to these counts.
As to counts 15, 16 and 18 through 24, relating to the Morning Circle shootings, the jury did return true findings on the gang and firearm allegations as to these counts. However, the firearm enhancement found by the jury was based on section 12022.53, subdivision (c) [discharging a firearm], not section 12022.53, subdivision (d) [discharging a firearm causing great bodily injury or death], as stated in the abstract of judgment. In addition, because Casillas did not personally fire the gun, he could not be subject to both the firearm enhancements and the gang enhancements. (See § 12022.53, subds. (c), (e)(1), (e)(2); People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282 ["[W]here section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances. However, as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm."].) Hence, the terms imposed on those counts should have been only a life term plus a 20-year enhancement for firearm use.
Although this error had no practical effect on Casillas's sentence as to counts 16 and 18-24, it did have a practical effect as to count 15 which the trial court ran consecutive to count 1. Count 15's term of 20 years to life, when added to count 1's term of 15 years to life, adds up to a total sentence of 35 years to life, not 50 years to life.
Therefore, this matter must be remanded for resentencing because the trial court may wish to consider restructuring Casillas's sentence. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 ["the trial judge's original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased"]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for resentencing proper where original sentence contained unauthorized enhancement]; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458 [remand for resentencing proper where original sentence violated "double-the-base-term" rule].)
DISPOSITION
The judgment is affirmed as modified and remanded for resentencing. The convictions on counts 7 and 8 are vacated, and the matter is remanded for resentencing and correction of the abstract of judgment in accordance with this opinion. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
CROSKEY, J.
KITCHING, J.