Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF096731A & SF096731B
SCOTLAND, P. J.
Defendants Christopher Cervantes and Edgar Hernandez were found guilty of shooting at an occupied vehicle (Pen. Code, § 246), street terrorism (Pen. Code, § 186.22, subd. (a)), and two counts of attempted murder (Pen. Code, §§ 664, 187). The jury also convicted Hernandez of possession of marijuana for sale (Health & Saf. Code, § 11359) and found the attempted murders and shooting into the vehicle were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)) and a principal intentionally discharged a firearm when committing the attempted murders (Pen. Code, § 12022.53, subds. (c), (e)). They were sentenced to lengthy terms in state prison.
On appeal, defendants contend the trial court erred in allowing the prosecutor to introduce evidence that a revolver was found in defendant Cervantes’s bedroom. The People disagree but claim we must remand for resentencing because the trial court imposed unauthorized sentences. We shall modify the sentences and affirm the judgments as modified.
FACTS
On June 5, 2005, Edgar Quiroz was driving a blue Mitsubishi sedan to a store in Stockton. Also in the car was a person named Daniel. En route, they passed a white Camaro, which made a quick U-turn, squealing its tires, and started following Quiroz’s car.
Daniel’s last name is Hernandez, but we will refer to him by his first name so as not to confuse him with defendant Hernandez.
The driver of the Camaro pulled up next to Quiroz’s car, and the passenger in the Camaro, defendant Cervantes, leaned out the window, waving at Quiroz and Daniel and signaling with his hands. Quiroz heard Cervantes say something about “Nortenos” and saw him raise four fingers in the air. Although Quiroz had never been in a gang, he knew that the Nortenos were a gang and that the four-finger hand gesture was related to Nortenos.
Quiroz tried to get away from the Camaro, but it kept following him. At a stop light, Quiroz looked in his rearview mirror and saw Cervantes reach for something underneath the passenger seat of the Camaro. As Quiroz accelerated away, he heard three or four gunshots. A bullet shattered the back window of his car, and gunshots damaged the windshield and dashboard. Seconds later, Quiroz heard three or so more gunshots. He felt a sting in his knee and saw blood and his pants ripped open. Quiroz stopped his car in a nearby construction site and requested help from a security guard. Daniel, who was not injured, then drove Quiroz to the hospital, where the wound in Quiroz’s knee was cleaned and he was released.
At the time of the shooting, Officer Jason DiGiulio was on a nearby street conducting a traffic stop. He heard three to four gunshots that sounded like they were fired from a handgun between.22 caliber and.45 caliber. Hearing the sound of “racing engines,” he then saw a small blue sedan traveling at a high rate of speed from the direction of the gunshot sounds. A white Camaro followed the blue sedan and “skidded around” the corner.
Having received firearms training as a police officer, having hunted since he was 10 years old, and having served over four years in the military, Officer DiGiulio testified the sound of a handgun being fired is distinctly different from the sound of a rifle being discharged.
Officer DiGiulio stood in the street, pointed his gun at the approaching Camaro, and repeatedly ordered the occupants to stop. The Camaro slowed as it approached DiGiulio, and the passenger raised his hands to the sides of his head. However, the Camaro then sped up and passed the officer. DiGiulio reported the license plate number of the Camaro and provided dispatch with descriptions of both of its occupants. At trial, he identified defendant Hernandez as the passenger. DiGiulio did not see any bullet damage to the Camaro as it passed. He attempted to follow the Camaro but was unable to locate it.
The Mitsubishi had bullet holes and damage to its dashboard, rear brake lights, and license plate, and a child’s car seat in the trunk. Officers did not recover any bullets or bullet fragments from the Mitsubishi, but there was a bullet hole in the license plate that appeared to have been made by a nine-millimeter or.38 caliber handgun.
Five days after the shooting, Detective James Ridenour talked to the registered owner of the Camaro, Gordon Midwin, who said that he sold it to Cervantes several weeks earlier. Midwin provided Ridenour with Cervantes’s telephone number, address, and driver’s license number. Wanting to know what was going on, Midwin later called Cervantes and told him the police were looking for the Camaro.
Cervantes painted the Camaro black within days of the shooting and moved into a new residence with defendant Hernandez about a week after the shooting. It took officers a month to locate and ultimately search that residence. There, they found in Cervantes’s bedroom a loaded.38 caliber revolver; in Hernandez’s bedroom, they found twelve.38 caliber bullets, an expended.38 caliber shell casing, and other miscellaneous bullets. Officers also found over 700 grams of marijuana, and items that prosecution witnesses testified were indicative of both defendants’ Norteno gang affiliation.
Cervantes and Hernandez are brothers.
Defendants denied they were gang members. Their version of the incident was as follows: When they heard gunshots in the area, Cervantes ducked down in the passenger seat, and Hernandez sped away from the area after their encounter with Officer DiGiulio. Cervantes testified that he painted the Camaro after the shooting both because he was planning to sell it, and he was scared of being found by whoever may have been shooting at them. His move to the new residence had been planned prior to the shooting. According to Cervantes, he worked at a salvage yard and found the.38 revolver in a vehicle at the yard.
DISCUSSION
I
Defendants unsuccessfully moved in limine to preclude the prosecutor from introducing evidence that a.38 caliber revolver was found in defendant Cervantes’s bedroom. They now contend the trial court erred in not exercising its discretion to exclude that evidence pursuant to Evidence Code section 352 and, thus, violated their right to due process of laws. The claim of error lacks merit.
“When the specific type of weapon used to commit [an attempted] homicide is not known, it may be permissible to admit into evidence weapons found in the defendant’s possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant’s possession was the [attempted] murder weapon.” (People v. Riser (1956) 47 Cal.2d 566, 577; overruled on other grounds in People v. Chapman (1959) 52 Cal.2d 95, 98.) On the other hand, if the prosecution relies “on a specific type of weapon, it is error to admit evidence that other weapons were found in [the defendant’s] possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons.” (People v. Riser, supra, 47 Cal.2d at p. 577.)
Here, the prosecution did not know the exact type of firearm used in the shooting, other than that the sound of the gunfire was consistent with that of a handgun, and a bullet hole in the license plate of the victims’ vehicle appeared to have been made by either a.38 caliber or nine-millimeter handgun. Thus, the discovery of a.38 caliber Colt revolver in Cervantes’s bedroom was relevant and admissible to show he possessed a weapon that could have been used in the shootings. (People v. Riser, supra, 47 Cal.2d at p. 577.) That the.38 revolver was found over a month after the shooting, and the prosecutor was unable to definitively show it was the gun used in the shooting (no spent bullets were found and, therefore, ballistics tests were not performed on the revolver), bear upon the weight of the evidence, not its inadmissibility.
Defendants’ appellate counsel misrepresents the record when he claims “[t]here was no testimony or evidence to suggest that the gun fired at Mr. Quiroz was of the same caliber as the one in [Cervantes’s] home; police testimony regarding the gunshots failed to link the shooting to the weapon seized.” Defendants’ appellate counsel further misrepresents the record when he argues “[t]here was no evidence introduced to suggest that the firearm was similar to the one used to shoot at Mr. Quiroz’s automobile.” (See Bus. & Prof. Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5-200(B) [a member of the State Bar “[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law”]; Jackson v. State Bar (1979) 23 Cal.3d 509, 513.)
As the trial court correctly observed, evidence that Cervantes possessed a.38 Colt revolver a month and two days after the shooting was “probative to show that [he] had access to a firearm” and “could have used this firearm” in the shooting. The court went on to find “the probative value far outweighs any prejudicial effect because of the closeness in time” in that the evidence gave rise to an inference “that this in fact was the firearm. How strong an argument that is, that would be up to the jury to decide.”
The trial court did not abuse its discretion in declining to exclude the relevant evidence pursuant to Evidence Code section 352. (See People v. Lucas (1995) 12 Cal.4th 415, 449.) Evidence that a.38 Colt revolver was found in Cervantes’s bedroom just over a month after a shooting committed with a handgun consistent with the caliber of the revolver found in Cervantes’s bedroom was highly probative (People v. Riser, supra, 47 Cal.2d at p. 577) and was not prejudicial within the meaning of Evidence Code section 352 because it was not the type of evidence “‘which uniquely tends to evoke an emotional bias against’” a defendant “‘as an individual and which has very little effect on the issues.’ [Citation.]” (People v. Wright (1985) 39 Cal.3d 576, 585.)
II
The People contend we must remand for resentencing because the trial court improperly imposed and stayed the longer sentence. Defendants see it differently. Neither side accurately characterizes the judgment.
For counts 1 and 2, the trial court imposed an aggregate term of 35 years as follows: the lower term of five years for attempted murder (count 1); a consecutive term of 20 years for the firearm enhancement on count 1; an additional term of 10 years for the gang enhancement on count 1, stayed pursuant to Penal Code section 12022.53, subdivision (e)(2); a term of three years four months (one-third of the middle term) for attempted murder (count 2); a term of six years eight months (one-third of the 20-year term) for the firearm enhancement on count 2; and a term of 10 years for the gang enhancement on count 2, stayed pursuant to Penal Code section 12022.53, subdivision (e)(2). (Further section references are to the Penal Code.)
For count 3, shooting at an occupied vehicle, the court imposed the middle term of five years, plus a consecutive 15 years to life for the gang enhancement, for a total of 20 years to life for count 3.
The court then asked counsel which is longer, 20 years to life or 35 years. Receiving no input from counsel, the court stayed, pursuant to section 654, the term of 20 years to life for count 3. The court also imposed and stayed a concurrent sentence of 16 months for count 4, street terrorism. As to defendant Hernandez only, the court imposed a concurrent term of two years on count 5, possession of marijuana for sale.
Section 654, subdivision (a) states in pertinent part that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Thus, section 654 “‘“precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Here, the trial court found that count 3 involved the same operative facts as counts 1 and 2. Thus, as noted by the court, the longer potential term must be served and the shorter term must be stayed pursuant to section 654.
As we will explain, the longer term was the term imposed on count 3.
Section 186.22, subdivision (b)(4)(B) states in pertinent part: “Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶]... [¶] (B) Imprisonment in the state prison for 15 years, if the felony is... a felony violation of Section 246 [shooting at an occupied vehicle]....”
Although the term imposed on count 3 is often characterized as “20 years to life,” it is actually a life sentence with a 20-year minimum parole eligibility date. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1228-1229; People v. Johnson (2003) 109 Cal.App.4th 1230, 1239-1240.) This is a potentially longer term than the term of 35 years imposed on counts 1 and 2. Consequently, the terms imposed on counts 1 and 2 must be stayed pursuant to section 654.
We may modify the judgment, rather than remand to the trial court for resentencing, because determination of the longer term is a product of statute.
It appears that the punctuation in the reporter’s transcript with respect to the trial court’s imposition of the security fee (§ 1465.8) has misled the parties. Read in context, the court imposed a $200 restitution fine, a $200 parole revocation fine, and a $20 security fee on both defendants and imposed a $163.75 lab fee as to defendant Hernandez only. The clerk’s minutes and abstracts of judgment properly reflect the imposition of the security fee on both defendants.
However, the lab fee imposed on defendant Hernandez is not reflected in the clerk’s minutes and abstract of judgment. This error must be corrected in the preparation of the amended abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgments as to defendant Cervantes and defendant Hernandez are modified such that the terms imposed with respect to count 3 (20 years to life [the middle term of five years, and a consecutive term of 15 years to life for the gang enhancement]) are not stayed and shall be served; instead, the terms imposed as to counts 1 and 2 (an aggregate term of 35 years) are stayed pursuant to section 654. As modified, the judgments are affirmed.
The trial court is directed to amend the abstracts of judgment to reflect this modification and to further reflect the $163.75 lab fee imposed on defendant Hernandez. The court shall forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: SIMS , J., CANTIL-SAKAUYE , J.