Opinion
E031955.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. LAURENO ARTIAGA CERVANTES et al., Defendants and Appellants.
Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant Laureno Artiaga Cervantes. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Tony Richard Martinez, Jr. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendants and appellants, Laureno Artiaga Cervantes and Tony Richard Martinez (hereafter referred to either individually by their last names or collectively as defendants), guilty as charged of one count of murder, three counts of attempted murder, one count of discharging a firearm at an occupied vehicle, and one count of discharging a firearm from a vehicle. The charges all stem from a gang-related shooting on October 28, 2000, in which defendants, members of Florencia 13, opened fire on members of a rival gang, Carnales, following an earlier altercation with Carnales in which several Florencia 13 members had been injured. The shooting was the culmination of two earlier encounters that day between the rival groups. In the first encounter defendant Cervantes and Martin Gutierrez, a Carnales member, were "maddogging" each other as Cervantes and several other Florencia 13 members drove past Gutierrezs house. Gutierrez and Cervantes purportedly were involved in a dispute over a girl. The two groups met a second time later that day and that encounter began with a fistfight between Cervantes and Gutierrez. During the fight, a car pulled up and an object was thrown that hit Sergio Sevin, a Florencia 13 member, in the face. The car then hit Cervantess vehicle, causing a door to slam on and break the leg of another Florencia 13 member. The vehicle impact also caused a rib injury to a third Florencia 13 member who had been standing nearby. Defendant Cervantess car was damaged in the collision.
The third and final encounter occurred later that evening outside a party when defendant Cervantes along with defendant Martinez and two other Florencia 13 members drove by Gutierrez and several other Carnales members as they were getting out of their car to attend a party. Defendant Martinez fired at least four shots from the car and those shots killed Ramiro Salazar and seriously injured Everardo Hernandez.[]
In addition to their guilty verdicts, the jury also returned true findings on special circumstance allegations, criminal street gang enhancements, and firearm enhancements. As a result of the guilty verdicts and true findings, the trial court sentenced each defendant to a term of life without the possibility of parole on count 1, plus three consecutive terms of life in prison with the possibility of parole on counts 2, 3, and 4, respectively. In addition the trial court sentenced each defendant to determinate terms of 140 years in state prison based on the gang and firearms use enhancements. We discuss defendants sentences in more detail, below.
Defendants individually and jointly[] raise various claims of error in their respective appeals, the details of which we recount below in our discussion of those issues, directed at challenging the jurys verdicts and true findings as well as the trial courts sentence. We conclude that the trial court made various errors in sentencing defendants and therefore we will modify their sentences, accordingly. As modified, we shall affirm the judgments.
In accordance with rule 13 of the California Rules of Court, defendants join in each others issues.
DISCUSSION
We first address defendants joint claim that the trial court erred by refusing to instruct the jury on voluntary manslaughter based on heat of passion.
1.
VOLUNTARY MANSLAUGHTER INSTRUCTIONS
At trial, both defendants asked for instructions on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses of the charged crimes of murder and attempted murder. The trial court found there was no evidence of heat of passion because the shooting occurred at least three hours after the fight, a time period the trial court found sufficient for the participants in the fight to have cooled off. In addition, the trial court noted that defendant Martinez, the actual shooter, had not been present during the earlier altercations and therefore could not have been acting under the heat of passion aroused by that event. Consequently, the trial court denied defendants request.
A. Absence of Heat of Passion as Element of Murder
Defendant Martinez contends, citing Mullaney v. Wilbur (1975) 421 U.S. 684, 704, that in order to prove the malice element of murder and attempted murder, the prosecution must prove the absence of heat of passion and therefore the trial court should have given voluntary manslaughter instructions. Defendant Martinez is wrong.
In Mullaney v. Wilbur, the Supreme Court invalidated a Maine law that put the burden on the defendant to prove the defendant acted in the heat of passion in order to reduce a charge of murder to manslaughter. The court held that the law violated the due process requirement that the prosecution prove the defendants guilt beyond a reasonable doubt. Mullaney v. Wilbur does not hold, as defendants claim, that in any case in which a defendant is charged with murder the prosecution must prove the absence of heat of passion in order to prove the defendant acted with malice aforethought. In fact, as defendants note, the Supreme Court expressly stated, "Many states do require the defendant to show that there is `some evidence indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt. [Citations.] Nothing in this opinion is intended to affect that requirement." (Mullaney v. Wilbur, supra, 421 U.S. at p. 701 fn. 28.)
People v. Rios (2000) 23 Cal.4th 450, which defendants also cite, is equally unavailing. In Rios, our state Supreme Court rejected the defendants assertion that in order to prove the charged crime of voluntary manslaughter the prosecution must prove the defendant killed in the heat of passion upon sufficient provocation or in the actual but unreasonable belief in the need for self-defense (referred to as imperfect self-defense).[] The court held that where the crime charged is voluntary manslaughter, the prosecution must prove the killing was intentional and unlawful. (People v. Rios, supra, 23 Cal.4th at p. 454.) In addition, the court held that heat of passion and imperfect self-defense are issues when the crime is murder because they negate the element of malice and thus reduce the crime from murder to manslaughter. (Ibid.) Malice is not an element of voluntary manslaughter. Therefore, the court held "neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter that the People must affirmatively prove beyond reasonable doubt in order to obtain a conviction for that offense." (People v. Rios, supra, 23 Cal.4th at p. 454.) Seizing on the quoted language (and citing to the publishers summary rather than the courts opinion) defendant Martinez asserts that the prosecutor must prove the absence of heat of passion in order to prove murder even in a case where there is no evidence of heat of passion. As we have discussed, defendant Martinez is wrong.
The defendant had been retried for voluntary manslaughter after having been acquitted of murder. The defendant claimed in effect that if the jury believed that he killed intentionally and unlawfully but without provocation or in self-defense, then the jury also would have to acquit the defendant of voluntary manslaughter. (People v. Rios, supra, 23 Cal.4th at pp. 454-455.)
B. Voluntary Manslaughter as Lesser Included Offense
The correct legal principles are those pertinent to a trial courts duty to instruct on relevant legal principles, in this case lesser included offenses. Although the parties address the issue in the context of sua sponte instruction, in fact defendants requested the trial court instruct the jury on voluntary manslaughter as a lesser included offense to the charged crime of murder. A trial courts duty to instruct, whether upon request or sua sponte, on any legal principle depends in the first instance on whether there is substantial evidence to support the instruction. (See People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Flannel (1979) 25 Cal.3d 668, 685 [A trial court should instruct "`on every theory of the case, but only to the extent each is supported by substantial evidence."].) "[T]he existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury." (People v. Breverman, supra, 19 Cal.4th at p. 162.) "`Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.)
As stated in People v. Breverman, "An intentional, unlawful homicide is `upon a sudden quarrel or heat of passion ([Pen. Code,] § 192[, subd.] (a)), and is thus voluntary manslaughter (ibid.), if the killers reason was actually obscured as the result of strong passion aroused by a `provocation sufficient to cause an `"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." [Citations.] `"[N]o specific type of provocation [is] required . . . ." [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any `"`[v]iolent, intense, high-wrought or enthusiastic emotion" [citations] other than revenge [citation]. `However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . . [Citation.]" (People v. Breverman, supra, 19 Cal.4th at p. 163, emphasis added.)
Viewing the evidence in this case according to the above-noted principles, we must conclude that the trial court correctly refused to instruct the jury on voluntary manslaughter based on heat of passion. Defendant Martinez, whom the evidence showed to be the actual shooter, was not present during the earlier altercations with Carnales members. Thus, if Martinezs passion was aroused, it was not by any act of the victims and therefore the trial court properly refused voluntary manslaughter instructions as to him. (See People v. Williams (1995) 40 Cal.App.4th 446, 454-455; People v. Spurlin (1984) 156 Cal.App.3d 119, 126 [victim must be the source of the provocation in order to warrant voluntary manslaughter instructions].)
Defendant Cervantes effectively concedes that what motivated the shooting was a desire for revenge. Specifically, he notes that defendants "were extremely angry" as a result of the earlier incident in which three of their friends had been injured "and [defendant Cervantes] said that those responsible would pay for what they had done." Although an intense emotion and, as this case demonstrates, one that can overpower the actors reason, revenge as a matter of law is not a form of passion that will support voluntary manslaughter. (People v. Breverman, supra, 19 Cal.4th at p. 163; People v. Valentine (1946) 28 Cal.2d 121, 139.)
According to the undisputed evidence in this case, defendants set out to exact revenge for the earlier confrontation in which Carnales members injured three Florencia 13 members and damaged defendant Cervantess car. Although the witnesses could not agree on the amount of time between the fight with Carnales members and the shooting, the estimates ranged from no less than an hour to as long as six hours. During that time, however long or short it was, defendant Martinez was informed of the earlier altercations and obtained a shotgun. Defendant Cervantes obtained ammunition for the shotgun. Jose Espinoza (referred to at trial and in the parties respective briefs by his gang moniker, Borrego) then drove defendants around searching for Carnales members. After 15 to 20 minutes of driving around, defendant Martinez suggested Borrego drive by a party he believed would be attended by Carnales members. After driving past the party three or four times but spotting only one person whom they knew to be a member of Carnales, the three decided to leave and return later. As they were driving away from the party, defendant Martinez spotted two cars that he recognized as belonging to Carnales members. Although he did not recognize either of the cars as ones that were at the earlier fight, Borrego turned around to follow them. While the cars were being parked, Borrego drove by and then made a U-turn and headed back toward the vehicles. People were getting out of the two cars as Borrego approached and defendant Martinez said, "There they are." At the same time, defendant Martinez pulled out his shotgun, yelled "Florencia" and fired shots out the car window.
Simply put, the evidence shows that defendants acted out of revenge and not in the heat of passion upon reasonable provocation. Therefore, the trial court correctly refused to instruct the jury on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses of the charged crimes of murder and attempted murder.
C. CALJIC No. 8.73
Defendants also contend that although the trial court found insufficient evidence of provocation to support voluntary manslaughter instructions, the court should have instructed the jury according to CALJIC No. 8.73 that, "If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation." (CALJIC No. 8.73 (7th ed. 2003).) The trial court rejected defendants request to give the quoted instruction based on the courts reasoning that because the court was not giving manslaughter instructions the court would not have to give CALJIC No. 8.73.
The trial court properly refused to instruct the jury according to CALJIC No. 8.73 because there was no evidence of provocation in this case. As previously discussed defendants actions were motivated by a desire for revenge. Defendants harbored that emotion for at least an hour and possibly as long as six hours during which they laid the plan that culminated in the shooting. In short, and defendants contrary view notwithstanding there was no evidence of provocation. Therefore, the trial court correctly refused to instruct the jury regarding the effect provocation might have on deliberation and premeditation.
2.
MALICE AND MALICE AFORETHOUGHT INSTRUCTIONS
Defendants contend that the trial court erred by instructing the jury on the definitions of "malice" set out in CALJIC Nos. 1.22 and 8.11. Defendants concede that both definitions apply, the latter to the murder and attempted murder charges alleged in counts 1 through 4, and the former to the charges alleged in counts 5 and 6 that defendants maliciously discharged a firearm at an occupied motor vehicle and from a motor vehicle, respectively. Defendants contend that the trial court should have instructed the jury that the CALJIC No. 1.22 definition of "malice" and "maliciously" applied only to the charges in counts 5 and 6 and not to the murder or attempted murder charges alleged in counts 1 through 4.
Because both instructions were pertinent and therefore correctly given, it was incumbent on defendants to ask the trial court to explain the application of each instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 570 [where an instruction correctly although generally or incompletely states the pertinent legal principles, the defendant must request elaboration or amplification]; People v. Andrews (1989) 49 Cal.3d. 200, 218.) Moreover, viewing the jury instructions as a whole, there is no reasonable likelihood that the jury understood or applied the instructions in a manner that violated defendants rights. (See People v. Frye (1992) 7 Cal.App.4th 1148, 1160 [Instructions, although correct, must be considered "as a whole to determine what they would mean to a reasonable juror. [Citations.] A technically correct instruction will nevertheless be considered erroneous if in light of other instructions it could cause a reasonable jury to believe that it was required to find against the defendant on an essential element of the offense [citation], that the burden had shifted to the defendant with respect an essential element of the offense [citation], or that its consideration of all of the evidence with respect to an essential element of the offense was restricted [citation]."].)
Viewing the instructions according to the foregoing principles, the jury could not have been misled by the two malice instructions. CALJIC No. 1.22, as given by the trial court, defines the terms "malice" and "maliciously" as meaning "a wish to vex, annoy or injure another person, or an intent to do a wrongful act." The trial court gave the instruction as part of the preliminary or definitional instructions. Later, in defining the elements of the various crimes, the trial court instructed the jury that the crime of shooting at an occupied motor vehicle as charged in count 5 requires proof that a person discharged a firearm at an occupied motor vehicle and that the firearm discharge was willful and malicious.
In instructing the jury on the crime of murder as charged in count 1, the trial court gave CALJIC No. 8.10 which defines the crime and instructs that murder requires proof that, "One, a human being was killed; [¶] Two, the killing was unlawful; and [¶] Three, the killing was done with malice aforethought or occurred during the commission or attempted commission of the intentional discharge of a firearm from a motor vehicle intending to inflict death." The trial court then instructed the jury according CALJIC No. 8.11, which defines malice aforethought and states, "Malice may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. Malice is implied when, one, the killing resulted from an intentional act; two, the natural and probable consequences of the act are dangerous to human life; and, three, that act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [& para;] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the other person killed. [¶] The word `aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."
The foregoing instructions make clear that the crime of murder requires proof the defendants acted with malice aforethought and that malice aforethought is a mental state significantly different from malice as defined in CALJIC No. 1.22. Defendants contrary claim notwithstanding, there is no reasonable likelihood that the jury was misled and found defendants guilty of murder by substituting malice as defined in CALJIC No. 1.22, i.e., "a wish to vex, annoy or injure another person, or an intent to do a wrongful act," for malice aforethought as defined in CALJIC No. 8.11. (People v. Frye, supra, 7 Cal.App.4th at p. 1160.)
Defendants also contend that the trial court erred by giving an instruction on implied malice because such an instruction should not be given when attempted murder is charged. Defendants are correct that attempted murder requires proof of specific intent to kill or express malice and therefore implied malice instructions should not be given in connection with an attempted murder charge. (People v. Lee (1987) 43 Cal.3d 666, 670.)
In this case, however, defendants were charged both with murder and attempted murder. The trial court properly instructed the jury on implied malice in connection with the murder charge. In instructing the jury on the crime of attempt to commit murder the trial court instructed that that crime requires "express malice aforethought, namely a specific intent to kill unlawfully another human being." The trial court did not instruct the jury on implied malice in connection with the attempted murder charges and instead correctly instructed that in order to find defendants guilty of those crimes the jury had to find defendants "harbored express malice aforethought, namely a specific intent to kill unlawfully another human being."
Accordingly, for the reasons stated, we must reject defendants claims regarding the malice and malice aforethought jury instructions.
3.
FAILURE TO GIVE CALJIC No. 8.67
Defendants contend that the trial court committed reversible error by failing to give CALJIC No. 8.67 in connection with the attempted murder charges. Although the trial court gave CALJIC No. 8.66 which defines the crime of attempted murder, the trial court did not give CALJIC No. 8.67, which defines the terms willful, deliberate, and premeditated for purposes of the allegation under Penal Code section 664, subdivision (a) that the attempted murder was willful, deliberate and premeditated. The instruction expressly advises the jury that, "The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true." (CALJIC No. 8.67 (7th ed. 2003).)
Defendants acknowledge, with the exception of the quoted language on the burden of proof, that the pertinent legal principles are covered in CALJIC No. 8.20, the instruction that defines willful, deliberate, and premeditated murder, an instruction the trial court gave in this case. Defendants contend that the omission of CALJIC No. 8.67 nevertheless is reversible error because no other instruction told the jury that in order to find the willful, deliberate, and premeditated allegation true in connection with the attempted murder charges, they had to be persuaded beyond a reasonable doubt. In other words, defendants characterize the error as akin to failing to instruct the jury on reasonable doubt. We do not share defendants view.
The trial court gave the general instruction on reasonable doubt, CALJIC No. 2.90, and thereby instructed the jury on the prosecutors burden to prove defendants guilt beyond a reasonable doubt. In addition, the trial court instructed the jury in connection with the three other special allegations that the People have the burden of proving the truth and if the jurors have a reasonable doubt that the allegations are true, they must find them not true. Moreover, the trial court did not instruct the jury on any other burden of proof. In view of the noted instructions, and the fact that the jury was not advised of any other burden of proof, there is no reasonable likelihood that the jury applied a burden of proof other than beyond a reasonable doubt in finding true the allegations that the attempted murders were willful, deliberate, and premeditated. (People v. Davison (1995) 32 Cal.App.4th 206, 212, citing People v. McPeters (1992) 2 Cal.4th 1148, 1191 and People v. Warren (1988) 45 Cal.3d 471, 487.)
4.
FAILURE TO INSTRUCT THAT AN AIDER AND ABETTOR MUST PERSONALLY PREMEDITATE AND DELIBERATE
Defendant Cervantes contends that in order for the jury to find him guilty of attempted willful, deliberate, and premeditated murder as an aider and abettor the jury had to find that he personally premeditated and deliberated. Because the trial court did not instruct the jury in that regard, Cervantes contends we must reverse the jurys true findings on the related allegations.
The Supreme Court recently addressed and rejected this precise assertion in People v. Lee (2003) 31 Cal.4th 613. The court held that Penal Code section 664, subdivision (a), which specifies the punishment for willful, deliberate, and premeditated murder, "properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted willfully and with deliberation and premeditation, even if he or she is guilty as an aider and abettor." (Id. at p. 616)
Accordingly, for the reasons stated in People v. Lee, we reject defendant Cervantess claim in this appeal.
5.
EVIDENCE DEFENDANTS CLAIMED TO BE GANG HIT MEN
Defendants contend the trial court erred in overruling their objections to the testimony of Rey Esparza who stated, among other things, that both defendants, within a year to six months before the shootings at issue in this case, had told Esparza they were hit men for their gang. Defendants objected to the testimony on the grounds that it was inadmissible hearsay, was irrelevant, lacked foundation and that the probative value of the evidence was substantially outweighed by its potential for prejudice. The trial court overruled the objection, stating only that if the prosecutor could lay the foundation, the court would permit the statement to come in.
As a result of the trial courts ruling, Rey Esparza testified, in pertinent part, that he knew both defendants and as of October 28, 2000, (the date of the shooting) he had known defendant Martinez for about a year and defendant Cervantes for about six months. Esparza knew that both defendants were members of Florencia. Martinez had told Esparza that he would do anything for the gang and often mentioned that he was a hit man for the gang. Esparza could not recall any specific date on which Martinez had said he was a hit man and when asked to estimate said, "A day, two [sic], a week before. It could be, you know, I dont remember. Like saying any specific date that he mentioned that to me." Esparza also testified that Cervantes had said the same thing: "That he would do anything for the gang, and that he was the main man, the hit man or, you know, the guy that takes care of the problem." Esparza had this conversation with Cervantes several months before October 28, 2000.
In challenging the trial courts ruling, defendants raise various arguments all of which amount to an assertion that the probative value of the evidence that defendants claimed they were hit men was substantially outweighed by the potential for prejudice and therefore the trial court should have excluded that evidence under Evidence Code section 352. Assuming without deciding error occurred, the admission of that evidence was not prejudicial.
The erroneous admission of evidence requires reversal of a conviction only if that error was prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) A miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) Although defendants cite the Watson standard, they also note that the erroneous admission of evidence in violation of Evidence Code section 352 can violate a defendants due process right to a fair trial and such error requires reversal "unless the People can show that the pervasive use of inadmissible evidence did not contribute to the jurys conviction of [defendant]." To the extent the quoted language reflects defendants view that the error in question violated their due process rights to a fair trial, we must disagree. Assuming that the trial court erred, the error involves a discrete item of evidence rather than the pervasive use of inadmissible evidence. Therefore, defendants due process rights were not affected and we assess prejudice under the Watson standard, quoted above.
In addressing prejudice defendants note that the trial court did not give CALJIC No. 2.50 which would have instructed the jury that they could not consider the hit man statement to prove defendants are bad people and therefore have dispositions to engage in criminal activity. No such instruction was required. The instruction applies when evidence of prior bad conduct by the defendant has been admitted under Evidence Code section 1101, subdivision (b). The noted instruction would be required if the proffered evidence had been that defendants claimed to have performed hits for the gang in the past. The hit man statement does not disclose prior bad conduct by the defendants. Rather, the statement is an admission by the defendants of their role or function in the gang. But even if the statement did reveal prior bad acts, defendants concede there is no sua sponte duty to give CALJIC No. 2.50. As the Supreme Court stated in People v. Padilla (1995) 11 Cal.4th 891, "We have long since held that `in general the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. [Citation.] Although our opinion . . . recognized the possibility (one that had no application in that case) that there might be `an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose (citation), this is not such a case." (Id. at p. 950, quoting People v. Collie (1981) 30 Cal.3d 43, 64, italics omitted.) Nor is this is such a case.
Defendants contrary view notwithstanding, the particularly damning evidence in this case was the testimony of Jose "Borrego" Espinoza who stated, in pertinent part, that he was the driver of the car on the night in question and that he and defendant Cervantes had driven around looking for Carnales members after the fight. Espinoza and Cervantes then went to a local bar where they found defendant Martinez and told him about the earlier altercation with Carnales. Espinoza testified that he and Cervantes left the bar and returned a short time later with shotgun shells they had obtained from the garage in an apartment complex. Defendant Martinez provided the shotgun and the three then drove around looking for Carnales members, ultimately ending up at the party in Mira Loma where the shooting occurred. In view of the other properly admitted evidence, it is not reasonably probable the jury would have reached results more favorable to defendants on any of the charges in this case had the jury not heard the testimony of Rey Esparza, set out above, that defendants each claimed to be a hit man for the gang. (People v. Watson, supra, 46 Cal.2d at p. 836.)
6.
SUFFICIENCY OF THE EVIDENCE
Defendants contend the evidence is insufficient to support the Penal Code section 12022.53, subdivision (d) firearm use enhancements imposed on the attempted murder convictions alleged in counts 3 and 4 because there was no evidence that the alleged victims suffered great bodily injury. We agree.
Penal Code section 12022.53 imposes escalating penalties for the use, discharge, and intentional discharge of a firearm. With respect to all counts, the information included an allegation under Penal Code section 12022.53 subdivision (d) which authorizes a sentence enhancement of 25 years to life in state prison for personally and intentionally discharging a firearm and proximately causing great bodily injury, as defined in Penal Code section 12022.7, or death in the commission or attempted commission of certain specified crimes, including attempted murder. (Pen. Code, § 12022.53, subds. (a) & (d).) The enhancement applies to both the actual shooter and an aider and abettor if the crime was committed for the benefit of a criminal street gang under Penal Code section 186.22, subdivision (b). (Pen. Code, § 12022.53, subd. (E)(1).) Martin Gutierrez and Oscar Salazar, the attempted murder victims alleged in counts 3 and 4, were not injured.[] Therefore, the evidence presented at trial was insufficient to support the jurys true findings on the Penal Code section 12022.53, subdivision (d) enhancements.[] The evidence, however, is sufficient to support a finding under Penal Code section 12022.53, subdivision (c) for personally and intentionally discharging a firearm.[] In accordance with Penal Code section 1181, subdivision 6 and Penal Code section 1260, we will modify the findings on counts 3 and 4, accordingly.
The Attorney General asserts, first, that defendants waived the issue by not raising it in the trial court and that in any event great bodily injury may be based on psychological and emotional trauma. The Attorney General does not cite any authority to support the waiver assertion, a claim that is tantamount to an assertion that through silence defendants waived their state and federal constitutional rights to be convicted only by evidence that proved guilt beyond a reasonable doubt. Simply put, a challenge to the sufficiency of the evidence does not require an objection in the trial court as a prerequisite for review on appeal. The alternative assertion is equally unpersuasive. Great bodily injury is defined by statute, specifically Penal Code section 12022.7, and the statutory definition does not include emotional or psychological trauma as the Supreme Court held in People v. Caudillo (1978) 21 Cal.3d 562, 582. Contrary to the Attorney Generals apparent view, Caudillo is not limited to rape cases.
Although the information included allegations under subdivision (d) of Penal Code section 12022.53, the trial court instructed the jury in connection with counts 3 and 4 on the allegation under subdivision (c) which applies when a principal discharges a firearm but does not cause death or great bodily injury. Ironically, that instruction was correct since neither one of the victims in those counts was injured. Although correctly instructed, the jury made a true finding under subdivision (d) of Penal Code section 12022.53, which requires great bodily injury or death.
Penal Code section 12022.53, subdivision (c) authorizes a sentence enhancement of 20 years for "any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony intentionally and personally discharges a firearm."
7.
SENTENCING ISSUES
In sentencing defendants, the trial court imposed gang enhancements under Penal Code section 186.22 and firearm enhancements under Penal Code section 12022.53 on all six counts. Defendants raise various challenges to the imposition of those enhancements. We conclude, for reasons we now explain, that the trial court made various errors in imposing the noted enhancements.
We begin by addressing the enhancement under Penal Code section 186.22, the so-called gang enhancement, for which, as to each defendant, the trial court imposed determinate terms of 10 years on counts 1 through 4, and on count 6 and a determinate term of 15 years on count 5. The trial court should not have imposed any criminal street gang enhancement on count 1, defendants first degree murder conviction and, as to defendant Cervantes, should not have imposed a determinate term on counts 2 through 6 because the trial court imposed the firearms use enhancement on defendant Cervantes. We now explain why.
When a defendant violates the criminal street gang statute by committing a crime that is punishable by imprisonment in the state prison for life, the determinate prison terms set out in Penal Code section 186.22, subdivision (b)(1) do not apply. (See Pen. Code, § 186.22, subd. (b)(1).) Where the crime is punishable by imprisonment for life, the criminal street gang enhancement is punished under Penal Code section 186.22, subdivision (b)(5) which specifies that the defendant "shall not be paroled until a minimum of 15 calendar years have been served." (Pen. Code, § 186.22, subd. (b)(5).) The trial court sentenced defendants to terms of life with the possibility of parole on counts 2 through 5[] and therefore the appropriate sanction for the gang enhancement is the minimum 15-year parole term under subdivision (b)(5) not a determinate prison term under Penal Code section 186.22, subdivision (b)(1).
Defendants do not include count 5 in their claim of error, presumably because the trial court stayed execution of their respective sentences on that count. Although stayed, the gang enhancement on that count of 15 years nevertheless is unauthorized and therefore must be stricken.
As to defendant Cervantes, the trial court should not have imposed any gang enhancements because the trial court imposed the enhancement under Penal Code section 12022.53. Defendant Cervantes was not the actual shooter but instead was an aider and abettor to defendant Martinez, the actual shooter. The gang enhancement under Penal Code section 186.22, subdivision (b) operates to make an aider and abettor vicariously liable under Penal Code section 12022.53 for the actual shooters discharge of a firearm and therefore only the firearm discharge enhancements may be imposed. (Pen. Code, 12022.53, subd. (e)(1).)[] Both the gang and firearm enhancements may be imposed only on defendant Martinez, the actual shooter. (Pen. Code, § 12022.53, subd. (e)(2).)[] Because the trial court imposed the section 12022.53, subdivision (d) firearm enhancements on each count as to defendant Cervantes, the court could not impose any enhancements under Penal Code section 186.22 for gang participation. (See People v. Salas (2001) 89 Cal.App.4th 1275, 1280-1282, which holds that the 15-year minimum parole eligibility under what then was Penal Code section 186.22, subdivision (b)(4), cannot be imposed in addition to the Penal Code section 12022.53 firearm enhancement on a defendant who is liable as an aider and abettor rather than the actual shooter.) Accordingly, we will direct the trial court to strike all gang enhancements on all counts as to defendant Cervantes and to modify the gang enhancements on counts 2 through 5 as to defendant Martinez from determinate terms to minimum parole terms.
Penal Code section 12022.53, subdivision (e)(1) states, "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b) [personal use of a firearm], (c) [personal discharge of a firearm], or (d) [intentional and personal discharge of a firearm causing death or great bodily injury]."
Penal Code section 12022.53, subdivision (e)(2) provides, "An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense."
The trial court also erred in imposing the Penal Code section 186.22 gang enhancement on count 1, defendants convictions for first degree murder. On count 1, the trial court sentenced each defendant to life in prison without the possibility of parole based on the jury having found true the special circumstances alleged under Penal Code section 190.2, subdivision (a)(21) and (22), the latter of which applies when the defendant commits first degree murder "while . . . an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." Because Penal Code section 186.22 does not include an enhancement that applies to a defendant sentenced to life in prison without the possibility of parole, we conclude that when the crime committed is first degree murder, criminal street gang participation is punished as a special circumstance under Penal Code section 190.2, subdivision (a)(22), which makes the defendant subject to death or life in prison without the possibility of parole. (See Pen. Code, § 190.2, subd. (a)(22).) Because the trial court imposed the sentence of life in prison without the possibility of parole on count 1 in accordance with the special circumstance, the trial court should not also have imposed the gang enhancement under Penal Code section 186.22. Accordingly, we will direct the trial court to strike that enhancement.
DISPOSITION
The defendants sentences are modified as followed, and as modified, are affirmed:
Defendant Martinezs sentence is modified by striking the Penal Code section 186.22, subdivision (b) enhancement imposed on count 1; amending the Penal Code section 186.22, subdivision (b)(1) enhancements imposed on counts 2 through 5 to minimum parole terms of 15 years under Penal Code section 186.22, subdivision (b)(5); amending the 25-year Penal Code section 12022.53, subdivision (d) enhancements imposed on count 3 and count 4 to 20-year enhancements under subdivision (c) of Penal Code section 12022.53.
Defendant Cervantess sentence is modified by striking the Penal Code section 186.22, subdivision (b) enhancements imposed on counts 1 through 6; and amending the 25-year Penal Code section 12022.53, subdivision (d) enhancements imposed on count 3 and count 4 to 20-year enhancements under subdivision (c) of Penal Code section 12022.53.
The trial court is directed to prepare an amended abstract of judgment as to each defendant that reflects defendants sentences as modified and to forward the amended abstracts to the appropriate agencies.
We concur: Ramirez, P.J., Richli, J.