Opinion
F076843
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JOE CHANLA, Defendant and Appellant.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14900610)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This criminal appeal arises from a gang-related shooting targeting officers with the Fresno Police Department. During the guilt phase of the bifurcated trial, the jury convicted defendant Joseph Joe Chanla of the attempted murder of Officer Sullivan (Pen. Code, §§ 664/187, subd. (a); count 2), shooting at an occupied vehicle (§ 246; count 3), discharging a firearm with gross negligence (§ 246.3, subd. (a); count 4), assault with a firearm (§ 245, subd. (a)(2); count 5), and active participation in a criminal street gang (§ 186.22, subd. (a); count 6). (§ 1026, subd. (a).) In addition, the jury found the following special allegations true: on count 2, defendant attempted to murder a peace officer engaged in the performance of his duties (§ 664, subd. (e)); on counts 2-5, defendant committed the felony offenses "for the benefit of, at the direction of, or in association with a criminal street gang" (§ 186.22, subd. (b)(1)); on counts 2 and 3, defendant personally and intentionally discharged a firearm in the commission of a felony (§ 12022.53, subd. (c)); and, on count 5, defendant personally used a firearm in the commission of a felony (§ 12022.5, subd. (a)). During the second trial phase, the jury found that defendant was sane at the time he committed the crimes. (§ 1026, subd. (a).)
All further statutory references are to the Penal Code unless otherwise noted.
On count 1, the attempted murder of Officer Gueringer, the jury was unable to reach a verdict and the court declared a mistrial. On count 4, which related to the shooting of a passing vehicle driven by Barbara A., the jury acquitted defendant of the greater offense of shooting at an occupied vehicle.
The trial court sentenced defendant to an indeterminate term of 15 years to life in prison, plus a determinate term of 22 years, as follows. On count 3, shooting at an occupied vehicle, the court sentenced defendant to 15 years to life under section 186.22, subdivision (b)(4)(B), plus an additional 20 years for the firearm enhancement under section 12022.53, subdivision (c). On count 2, the attempted murder of Officer Sullivan, the court sentenced defendant to a term of life in prison with the possibility of parole, plus an additional 20 years for the firearm enhancement, and stayed the sentence under section 654. On count 5, the assault of Barbara A. with a firearm, the court imposed a consecutive, lower term of two years, and struck the additional punishment for the firearm and gang enhancements. On count 4, discharging a firearm at Barbara A. with gross negligence, the court imposed the lower term of 16 months plus an additional upper term of four years for the gang enhancement, and stayed the sentence under section 654. Finally, on count 6, active participation in a criminal street gang, the court imposed a concurrent lower term of 16 months.
On appeal, defendant claims that the trial court's failure to limit the amount of gang evidence admitted at trial was error under Evidence Code section 352. Defendant also claims that the trial court misunderstood the scope of its sentencing discretion under section 1170.1, subdivision (a), when it selected count 3 as the principal term and that it had discretion to select count 2 as the principal term, resulting in a potentially more favorable sentence of life in prison plus 10 years for the gang enhancement applicable to violent felonies under section 186.22, subdivision (b)(1)(C). Finally, defendant requests correction of the abstract of judgment to reflect that on count 4, he was convicted of discharging a firearm with gross negligence in violation of section 246.3 rather than discharging a firearm at an inhabited dwelling in violation of section 246.
The People dispute defendant's entitlement to relief on his evidentiary and sentencing error claims. With respect to the admission of gang evidence, the People argue defendant forfeited his claim that cumulative evidence was admitted because he failed to object on that ground, the trial court did not abuse its discretion in admitting the evidence and any error was harmless. With respect to the sentencing claim, the People argue that under section 654, which applies to counts 2 and 3, the trial court was required to select as the principal term the count with the greatest potential term of imprisonment and, in any event, the trial court erred when it failed to sentence defendant on count 2 to 15 years to life in prison with the possibility of parole under section 186.22, subdivision (b)(5). Once that error is corrected, the People contend that any distinction between the sentences on counts 2 and 3 collapses. The People concede that the abstract of judgment contains an error as to count 4, and they also point out that the abstract of judgment fails to reflect the sentence on count 2 is stayed under section 654 and, as to count 3, it incorrectly reflects that defendant was convicted of discharging a firearm at an inhabited dwelling rather than at an occupied vehicle.
We conclude that the trial court did not abuse its discretion in admitting the gang evidence and, even if we assume error, it was not prejudicial. Therefore, we do not reach the People's forfeiture argument. Regarding counts 2 and 3, because section 1170.1 applies to determinate rather than indeterminate sentences, we reject defendant's claim that the trial court misunderstood the scope of its sentencing discretion under the statute and could have selected count 2 as the "principal term." (1170.1, subd. (a); People v. Williams (2004) 34 Cal.4th 397, 402.) We also agree with the People that the sentence on count 2 must be modified to reflect a sentence of 15 years to life under section 186.22, subdivision (b)(5). Finally, we agree that the errors identified by the parties in the abstract of judgment require correction. Except as modified, we affirm the judgment.
FACTUAL SUMMARY
Defendant's claims are limited to the guilt phase and, therefore, we do not summarize the sanity phase evidence.
I. Prosecution Case
A. The Shooting
On January 16, 2014, at approximately 5:20 p.m., a team of officers with the Fresno Police Department was attempting to locate an individual with an outstanding felony arrest warrant and had his residence under surveillance. Officer Swanson was watching the backyard when he saw two Asian males, neither of whom was the target of the arrest warrant, exit the basement and he alerted other officers by radio. Officers Sullivan and Gueringer left the nearby staging area and drove to the front of the residence in a marked patrol vehicle. They saw two males, later identified as defendant and Wilson Khounvixay, cutting across the front yard of the residence. Khounvixay was wearing a red hat and a red shirt, and defendant was wearing dark clothing. Khounvixay turned and looked at them.
Sullivan, who was driving, pulled in quickly behind a silver sport utility vehicle (SUV) that was parked in the driveway next to the residence. Gueringer saw a man and woman, both Hispanic, standing nearby. Khounvixay and defendant stopped in front of the SUV, but officers then lost sight of them due to the SUV's darkly tinted windows. After putting the patrol vehicle in park, Sullivan heard a "smack" and felt glass particles hit his face and debris hit the left side of his vest. He heard approximately four shots and smelled gunpowder. Gueringer also heard approximately four gunshots and felt glass hit his face. Both officers exited the patrol vehicle and took cover behind it. After other officers arrived, Sullivan and Gueringer were able to move back from their patrol vehicle and they saw Khounvixay lying under the front of the SUV. Defendant had fled, however.
Janie C., who had been a passenger in the SUV, testified that after the driver pulled into the driveway and they got out, she saw two Asian men she did not know running toward her. The man with a baseball cap and a facial piercing, identified as Khounvixay, asked if they could hide as the patrol car pulled in behind the SUV. Janie then heard Khounvixay tell the other man, identified as defendant, "[B]uck at them fools. Buck at them fools." She said defendant hesitated and looked like he did not want to, but he pulled a gun from his waistband and fired multiple times toward the officers. Janie dropped to the ground and crawled away.
Barbara A. testified that she was driving down the street when she saw a patrol car pull into a driveway and two men stand up in front of the silver SUV in the driveway. The men started shooting and she knew she was in the line of fire, so she ducked down and kept driving as bullets struck her car. Barbara testified she saw two guns and did not recall telling an officer at the time that she saw only one gun.
Five .40-caliber shell casings were recovered from the scene. Officer Sullivan's and Officer Gueringer's patrol vehicle sustained damage to the driver's side air conditioning vent and windshield, and a bullet was recovered from the dashboard. Bullets also struck the silver SUV in the driveway and Barbara's vehicle.
B. Defendant's Arrest
On January 18, 2014, law enforcement had an apartment complex on North Orchard Street under surveillance based on information that defendant, whom they were by then looking for in connection with the shooting, might be visiting there. Two women and a man Detective Williams was almost certain was defendant exited the apartment in response to a police announcement over the loudspeaker. Defendant was taken into custody but S.X., who lived there, remained inside and refused to come out. Police eventually broke the door down and took S.X. into custody. During a subsequent search of the apartment, officers located a .40-caliber semiautomatic handgun with a magazine containing 16 cartridges hidden in the back of a television in one of the bedrooms. The firearm was later matched to three shell casings found at the scene of the shooting. Testing on the other two shell casings was inconclusive. Officers also located a box of .40-caliber ammunition, a Dallas Cowboys hat and a shotgun; and the mattress in S.X.'s bedroom had "Asian Boyz," S.X.'s initials and "Convic," which is S.X.'s nickname, written on it.
Defendant was 18 years old at the time of the crime and Khounvixay was 28 years old. During interrogation, defendant initially denied any involvement in the shooting. He eventually admitted his aunt's boyfriend lived at the house police had under surveillance that day and he was at the house with "Scooby," which is Khounvixay's nickname or moniker. Defendant said he had been jumped into the Asian Boyz gang at 12 years old and that he respected Scooby, who is senior to him, both as a person and a homeboy. Defendant admitted he had a gun in his waistband that he got from an Asian Boyz gang member and that he fired four shots at police after Scooby told him to "buck at them," which means shoot at them. He stated he did not want to do it because the police had not done anything to them, but if he did not do what he was told, he would get disciplined, or checked, for it later. After Scooby told defendant to shoot a second time, he fired and then fled to Convic's house.
C. Gang Evidence
1. Asian Boyz
Officer Wilcox, an expert in Asian gangs, testified that the Asian Boyz (ABZ) is a primarily but not exclusively Lao gang. The gang has approximately 60 members in Fresno and the gang identifies with the color blue; the numbers 1, 2, 6, 22 and 26; and the letters A, B, AB and ABZ. Rival gangs include the Tiny Rascal Gang (TRG), Unknown Regulator Crew (URC) and Bulldogs. Wilcox testified that some of the primary activities of ABZ are assault, including with firearms; theft, including vehicle theft and burglary; drug sales; and possession and transportation of illegal weapons.
In support of his knowledge regarding ABZ, Wilcox testified to three specific contacts he had with ABZ gang members. On April 8, 2014, Wilcox spoke with K.S. at the jail. K.S. stated he had been active in ABZ for many years and he confirmed ABZ refers to Asian Boyz. He had an "ABZ" tattoo, an "A B" tattoo, and several tattoos with the numbers 1, 2 and 26 incorporated in them. K.S. said that 1, 2, and 26 refer to A, B, and Z, in correspondence with alphabetical order.
Wilcox also spoke with Richard C. at his residence on April 30, 2014. Richard, an ABZ gang member, was on probation for vehicle theft at the time. Richard told Wilcox he was jumped into the gang by two other members. He also told Wilcox that ABZ engages in home invasions, murder, and vehicle theft; that ABZ identifies with the color blue, the Dallas Cowboys, the numbers 1, 2, and 26 for A, B, and Z; and that TRG is a gang rival.
Finally, Wilcox spoke with Raul C. at the jail on May 30, 2014. Raul was in custody for vehicle theft and stated he was a member of ABZ. Although reluctant to talk, Raul told Wilcox that the tattoo "RK" stands for rascal killer or roach killer, in reference to TRG, and he also stated that 1, 2, and 26 refer to A, B, and Z, in correspondence with alphabetical order. Raul told Wilcox that ABZ is an "OG system" gang, meaning that senior, respected members of the gang can tell younger members what to do and they have the authority to discipline or "check" younger members for noncompliance.
Officer Wilcox was the last prosecution witness to testify and his opinion, discussed in this section, took into consideration the prior testimony of the other law enforcement officers.
a. Discharging Firearm from Motor Vehicle (Johnny S.)
Officer Fern testified that on July 17, 2009, a drive-by shooting occurred at the residence of a TRG dropout. Two TRG members also lived two houses away, and the victim of the drive-by shooting thought his house was probably targeted by ABZ gang members. After the shooting, police stopped a vehicle nearby occupied by Caesar V. and Johnny S. Police recovered a stolen handgun from under the seat occupied by Johnny. Both men were arrested for assault with a deadly weapon. When Officer Fern interviewed him, Johnny denied involvement in the shooting, but admitted he ran from the vehicle because he was wearing blue, which symbolizes ABZ.
Officer Palacios testified that Johnny S. was arrested on charges of being a felon in possession of a firearm and shooting at an occupied dwelling, and that during his classification interview with Johnny at the jail, Johnny admitted he was an ABZ gang member and had problems with TRG. Officer Wilcox testified that Johnny subsequently pled guilty to shooting from a motor vehicle under former section 12034 with a gang enhancement under section 186.22, subdivision (b), and that in his opinion, Johnny was a member of ABZ.
Effective January 1, 2012, section 12034 was repealed and recodified as section 26100. (Stats. 2010, ch. 711, §§ 4, 6.)
b. Felon in Possession of Weapon (Khounvixay)
Officer Lyon testified that on May 2, 2010, he and Sergeant Martin responded to a report of an altercation between a man and a woman at an apartment complex. An Asian male armed with a handgun had reportedly tried to intervene. As the officers approached a group of people, an Asian male matching the description of the male with the handgun turned and walked away. After they identified themselves as police and told him to stop, the man, later identified as Khounvixay, began running while holding onto his waistband. During the pursuit, Khounvixay tossed something. Lyon heard a clank and saw a firearm land. Officers recovered a semiautomatic handgun with a high-capacity magazine and Khounvixay, who admitted being an ABZ member, was arrested.
Former Officer Perkins testified that Khounvixay was arrested on charges of being a felon in possession of a firearm and shooting at an occupied dwelling, and that during his classification interview with Khounvixay at the jail, Khounvixay admitted he was an ABZ gang affiliate and had problems with TRG, he had an "ABZ" tattoo on his arm and his moniker was Scooby. Officer Wilcox testified that Khounvixay subsequently pled to being a felon in possession of a firearm under former section 12021, subdivision (a)(1), and that in his opinion, Khounvixay was a member of ABZ.
Effective January 1, 2012, section 12021, subdivision (a)(1), was repealed and recodified as section 29800, subdivision (a)(1). (Stats. 2010, ch. 711, §§ 4, 6.)
c. Possession of Stolen Vehicle (Richard C.)
Officer Badilla testified that while on patrol on October 3, 2010, he saw a black Honda speeding. As he pursued the car, the driver, later identified as Richard C., began driving erratically and then pulled over to the side of the road. As Badilla pulled in behind the car and activated his spotlight, Richard put the car in reverse, forcing Badilla to back the patrol car up to avoid being hit. Richard took off again before hitting a speed bump, which popped the driver's door open. Richard fell out and then ran as the car rolled to a stop in the intersection. Badilla pursued Richard on foot and apprehended him. Richard had five outstanding felony arrest warrants, including one for vehicle theft; and the Honda he was driving was stolen and had a shaved key jammed in the ignition. After first saying someone at a party gave him the key so he could drive himself home, he admitted he walked by the car and decided to use his shaved key to steal it.
Former Officer Perkins testified that during his classification interview with Richard, Richard stated he associated with ABZ and had problems with TRG. Officer Wilcox testified that Richard pled guilty to possession of a stolen vehicle in violation of Vehicle Code section 10851, and that in his opinion, Richard was an ABZ gang member.
d. Felon in Possession of Firearm (Tommy I.)
Finally, former Officer Yang testified that on May 2, 2012, he and Officer Hue responded to a service call for brandishing a firearm. A man in a red shirt matching the suspect's description, later identified as Tommy I., was standing outside a house with three other individuals when police arrived. Tommy ran behind the house and discarded something as he ran. Yang apprehended him and officers recovered a fully automatic .45-caliber pistol with an extended magazine. Tommy was arrested for being a felon in possession of a firearm and an assault weapon, and for violating probation.
Officer Pisano testified that Tommy was arrested on charges of weapon and ammunition possession, resisting arrest, violation of probation and other charges, and that during his classification interview with Tommy, Tommy stated he was an ABZ affiliate and he had problems with TRG. Officer Wilcox testified that Tommy pled no contest to being a felon in possession of a firearm under section 29800, subdivision (a), and active participation in ABZ under section 186.22, subdivision (a). Officer Wilcox opined that Tommy was a member of ABZ.
3. Other Law Enforcement Contacts
a. Wilson Khounvixay
Sergeant Bowlan testified that on January 4, 2005, he interrogated Khounvixay in conjunction with a residential burglary investigation. Khounvixay was wearing all blue clothing, including shoes, and he stated that he committed the burglary with two other men who were in ABZ to settle a drug debt he had with one of the men. He stated that he was a member of ABZ and had been jumped into the gang in 2004.
On April 23, 2008, Deputies Lyman and Vallez were involved in a probation search targeting Khounvixay. Two firearms were recovered from the residence and Lyman testified that Khounvixay stated, "Fuck you guys. I'm going to be wearing all blue from head to toe next time." Deputy Vallez arrested Khounvixay for possession of firearms and ammunition, in violation of his probation. He testified that Khounvixay was wearing blue shorts and had "ABZ" tattooed on his back and upper left arm.
Deputies Lyman and Vallez were both present for the search that targeted Khounvixay at a residence on Yale Avenue on April 23 at approximately 5:00 p.m. The prosecutor initially identified the search date as April 23, 2005, but later referred to it multiple times as April 23, 2008. It is unclear if the prosecutor initially misspoke or if the reference to 2005 is attributable to a transcription error.
Officer Palacios testified that during a jail classification interview on April 24, 2008, Khounvixay stated he was an ABZ gang member and he had problems with TRG and Bulldogs.
Deputy Villarreal testified that on September 17, 2010, Khounvixay was remanded into custody during a court appearance. He was wearing a blue and white shirt, blue jeans and blue shoes.
Former Officer Perkins testified that during a jail classification interview on February 18, 2011, Khounvixay stated that he was affiliated with ABZ, he had problems with TRG and URC, and his moniker was Scooby.
On January 12, 2014, Officer Sanchez and his partner went to Khounvixay's residence after reviewing a report regarding a possible brandishing of a weapon. Khounvixay was on felony probation, was listed by the probation department as an ABZ gang member and, as conditions of probation, was not supposed to associate with other gang members, wear gang colors or have gang paraphernalia at his residence. Sanchez testified that the color blue, the Dallas Cowboys and the Los Angeles Dodgers are associated with ABZ, and Khounvixay, who was agitated and uncooperative, was wearing a white shirt and shorts with blue piping. Officers also located a Cowboys jacket in the living room and Khounvixay was wearing a blue shirt in a photo found on his cellphone. Khounvixay was arrested for a probation violation.
Officer Gomez testified that during a jail classification interview on January 17, 2014, Khounvixay stated that he was a member of ABZ, he was not a gang dropout, he had problems with TRG and Bulldogs, and his moniker was Scooby. Khounvixay had been arrested on charges of attempted murder, conspiracy, drug possession and a probation violation.
b. Other Contacts
Detective Alexander testified that on March 7, 2009, he assisted with a traffic stop of a suspected stolen vehicle. There were five individuals in the vehicle, including defendant, who was 13 years old and wearing a blue sweater, and Jimmy K., who was 11 years old. Jimmy had found the keys to the vehicle, which belonged to a relative. Defendant, who was arrested, told Alexander he knew the vehicle was stolen and he had driven it earlier.
Detective Hill testified that curfew for those under 18 years of age is 10:00 p.m. On August 18, 2009, at approximately 11:45 p.m., he observed two males, one of whom was defendant, walking down the street. The two appeared to be under the age of 18 and Hill stopped to ask them how old they were. Defendant was 13 years old and the other individual was 14 years old. Defendant was wearing blue shoes, along with gray pants, a white shirt, and a white and black cap. The other individual was wearing all white.
Officer Carr testified that on May 12, 2010, at approximately 11:50 p.m., he and his partner contacted three individuals in front of an apartment complex. It was after curfew and two of the individuals, one of whom was defendant, identified themselves as juveniles. Defendant was wearing a blue beanie, blue jeans and a white shirt, and he had a blue bandana in his rear pocket, a blue cigarette lighter in his other rear pocket, and a folding knife in his front pocket. The group was standing near a mailbox and officers found an airsoft or BB gun inside.
Officer Phelps testified that on March 29, 2012, he responded to the scene of a stolen vehicle stop involving defendant, Johnny S. and S.X. Defendant stated he was driving the car and had obtained it from his neighborhood. He had two shaved keys in his pocket and was wearing gloves.
Officer Alvarado testified that on May 14, 2013, he was working undercover in plain clothes and in an unmarked vehicle. He observed a parked vehicle that had been reported stolen. He kept the vehicle under surveillance and followed it when it departed. The vehicle zigzagged through the neighborhood, avoiding major streets. Alvarado testified that sometimes when a vehicle drives slowly through a neighborhood and makes a lot of turns, the occupants can detect if they are being followed and, in this situation, the vehicle pulled into an apartment complex and four individuals ran from the car. Alvarado identified the four as defendant, Kevin L., Jacob W. and Jimmy K. Defendant, who was arrested, admitted stealing the vehicle with a shaved key and stated the four ran because they knew they were being followed.
Officer Blancas testified that on January 5, 2014, he and his partner contacted defendant, Raul C. and a third individual, who were standing under a carport at the apartment complex on North Orchard Street. The three said they were visiting. Blancas also made contact with two other individuals in the nearby laundry room.
Officer Henry testified that during a classification interview on January 19, 2014, after defendant's arrest in this case, defendant stated he had been an ABZ gang member in Fresno for six years and his moniker was Lil C-Loks.
Officer Palacios testified that during a jail classification interview on March 16, 2016, Richard C. stated he was affiliated with ABZ in Fresno and he was not a gang dropout.
Finally, Officer Wilcox testified that in his opinion, defendant, Khounvixay, Raul C., Kevin L., Jacob W., Jimmy K. and S.X. are all members of the ABZ gang.
4. Hypothetical
Wilcox testified that "'[b]uck at them' means to shoot at them" and in response to a hypothetical mirroring the facts of the crime, Wilcox opined that the shooting was committed for the benefit of, at the direction of, or in association with a criminal street gang. Wilcox explained that brazenly committing crimes in public instills fear, commands respect from others, and results in bragging rights; that a more junior member committing the shooting at the direction of a more senior member of the gang is consistent with the gang's "OG structure"; and that two gang members committing a crime together shows association.
II. Defense Case
In addition to calling two police technicians to question them regarding the five shell casings, the slug found on the dashboard of the patrol car and the live cartridges found in the loaded magazine, the defense called psychologist Richard Blak to testify regarding defendant's background and intellectual function.
Dr. Blak testified that the average intelligence quotient (IQ) is 100 and defendant has an IQ of 66, which is the full IQ for an 11- or 12-year-old. Dr. Blak diagnosed defendant with moderate intellectual developmental disorder. He explained that the free frontal cortex of the brain, which controls executive functions relating to comprehension of consequences, planning and organization, does not fully develop until the age of 25 and that an 11- or 12-year-old may have a conscience but has poor impulse control, lacks appreciation of the consequences of his or her behavior and is suggestible. In Dr. Blak's opinion, defendant faced the same challenges as a normal 11- or 12-year-old.
On cross-examination, the prosecutor questioned Dr. Blak regarding statements defendant made during recorded conversations from the jail. In one conversation, defendant made references to sentencing components and also stated his public defender "was trying to send me to the mental hospital 'cause I was just playing stupid. I was playing retarded. [¶] ... [¶] He tried to send me over there, but they didn't, they didn't take it. They like, they didn't fall for that shit. They like, 'Aww hell no'."
In a call with his mother, defendant told her there had been a "riot" at the jail and he "beat up one big ass fucking Bulldog ...." He also told her a psychiatrist came to talk to him "[s]o ... I can get less time. So they think I'm crazy. You know, so I can get less time and 1 go to the crazy hospital. From there on, I go somewhere else and I get out in probably like in a couple years." In another call with his mother, defendant talked about getting a job to save up money and join his parents in North Carolina, and he stated, "I'mma talk shit to the CO's all day. [¶] ... [¶] Until they do something."
Dr. Blak testified that defendant's statements during the recorded calls did not change his opinion. He disagreed that defendant's comment about getting a job to save money and move to North Carolina reflected planning or that defendant's comment about goading the jail officers into doing something reflected an appreciation of consequences. He stated that talking about moving could be merely fantasy and a reflection of "what [defendant] thinks he wants to do," and defendant's comment about the officers reflected his frustration.
On redirect, Dr. Blak said he reviewed the transcripts of the recorded calls the day before he testified and it did not change his opinion that when he evaluated defendant in May 2016, defendant had the cognitive abilities of an 11- or 12-year-old.
DISCUSSION
I. Challenge to Admission of Gang Evidence
Prior to trial, the court addressed defendant's objections to some of the gang evidence in the context of Evidence Code section 352, and defendant also advanced objections to the evidence during trial. The People claim defendant forfeited any challenge to the evidence as cumulative because he failed to specifically object on that ground during trial. In light of our conclusion that there was no error and any assumed error was harmless, we need not reach the issue of forfeiture.
A. Background
"In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) "'Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Pen. Code, § 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] In pursuit of this goal, the STEP Act focuses upon 'patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.' (§ 186.21.)" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted.)
Section 186.22, subdivision (a), sets forth the substantive gang offense, the elements of which are: "(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 56 (Albillar).) "The gravamen of the substantive offense set forth in section186.22[, subdivision ](a) is active participation in a criminal street gang[]" (id. at p. 55), and "[a]ll three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related[]" (id. at p. 56).
In addition, "a defendant who commits a felony in furtherance of criminal street gang activity is subject to increased punishment." (People v. Fuentes (2016) 1 Cal.5th 218, 223.) The gang enhancement, codified in section 186.22, subdivision (b)(1), applies to felonies "that were (1) 'committed for the benefit of, at the direction of, or in association with any criminal street gang,' and (2) 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Rivera (2019) 7 Cal.5th 306, 331.) "'Not every crime committed by gang members is related to a gang' for purposes of the enhancement [citation], but the enhancement applies 'when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.'" (Ibid., quoting Albillar, supra, 51 Cal.4th at pp. 60, 68.)
In this case, the jury convicted defendant of the substantive gang offense charged in count 6 and found true that his crimes of attempting to murder Officer Sullivan, shooting at an occupied vehicle, discharging a firearm with gross negligence and assault with a firearm were gang related. Relevant to both determinations, under the gang statute, a "'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
Although defendant acknowledges the relevance of the gang evidence in this case, he claims the amount of gang evidence admitted was error under Evidence Code section 352. For the reasons set forth below, we disagree.
Under California law, all relevant evidence is admissible except as otherwise provided by statute. (Evid. Code, § 351.) Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"'"Prejudice" as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption "'substantially outweigh'" the probative value of relevant evidence, a section 352 objection should fail. [Citation.] "'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" [Citation.] [¶] The prejudice that section 352 "'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.'" (People v. Doolin (2009) 45 Cal.4th 390, 438-439; accord, People v. Bell (2019) 7 Cal.5th 70, 105; People v. Tran (2011) 51 Cal.4th 1040, 1048 (Tran).)
C. Standard of Review
On appeal, we presume the trial court's evidentiary ruling is correct and defendant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139-1140.) "The trial court enjoys broad discretion in determining the relevance of evidence and in assessing whether concerns of undue prejudice, confusion, or consumption of time substantially outweigh the probative value of particular evidence. [Citation.] 'The exercise of discretion is not grounds for reversal unless "'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.['"]'" (People v. Clark (2016) 63 Cal.4th 522, 572; accord, People v. Johnson (2019) 8 Cal.5th 475, 521; People v. Jackson (2016) 1 Cal.5th 269, 320-321.)
D. Analysis
1. No Error
Defendant relies on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) and People v. Williams (2009) 170 Cal.App.4th 587 (Williams) for the proposition that the amount of gang evidence admitted by the trial court constituted prejudicial error under Evidence Code section 352. We find both decisions factually distinguishable, but also observe that they predate the California Supreme Court's decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
a. Albarran
In Albarran, two men shot at a house where a birthday party was being held and then fled on foot after their attempt to commandeer a nearby vehicle failed. (Albarran, supra, 149 Cal.App.4th at pp. 217-218.) The jury convicted the defendant of attempted murder, shooting at an inhabited dwelling and attempted kidnapping for carjacking, and found the crimes were committed for the benefit of a criminal street gang. (Id. at p. 217.) The trial court subsequently concluded that the gang enhancement findings were not supported by substantial evidence and granted the defendant's motion for a new trial on the gang allegations. (Ibid.) The trial court denied the defendant's motion for a new trial on the substantive charges, however. (Ibid.) On appeal, the defendant challenged the admission of the gang evidence and the denial of his motion for a new trial on all charges. A divided Court of Appeal found that it was error to admit the "extremely prejudicial gang evidence" and agreed that the defendant was entitled to retrial on all charges. (Ibid.)
In contrast with this case, the evidence in Albarran was insufficient as a matter of law to support the gang allegations. (Albarran, supra, 149 Cal.App.4th at p. 220.) Critically, although the prosecutor in Albarran proceeded on the theory that the crime was "a 'classic' gang shooting" (id. at p. 219), the only evidence of this was the testimony of the gang expert, who conceded he did not know the motive for the shooting, but nevertheless opined that "gang members commit crimes to gain respect and enhance their status within the gang[]" (id. at p. 227). Against this backdrop, "[t]he prosecution presented a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges[]" (ibid.), and "[t]he paramount function of this evidence was to show [the defendant's] criminal disposition" (id. at p. 228). "'[E]ven where gang membership is relevant, because it may have a highly inflammatory impact on the jury trial courts should carefully scrutinize such evidence before admitting it[]'" (People v. Gomez (2018) 6 Cal.5th 243, 294, quoting People v. Williams (1997) 16 Cal.4th 153, 193), and in Albarran, the appellate court concluded that "[e]ven if ... evidence of [the defendant's] gang membership and some evidence concerning gang behavior were relevant to the issue of motive and intent, other extremely inflammatory gang evidence was admitted, which had no connection to these crimes[]" (Albarran, supra, at p. 227).
Furthermore, in Albarran, the defendant's involvement in the crimes was contested and, as discussed, the existence of the gang motive asserted by the prosecutor was based on nothing more than conjecture. Here, defendant admitted that he shot at the officers because he was directed to do so by a senior gang member and that he faced discipline if he failed to comply. Therefore, rather than contesting involvement in the crimes, the defense focused on undermining the prosecution's case by raising the possibility that there were two shooters, as one eyewitness testified, and by attempting to create reasonable doubt regarding whether defendant intended to kill the officers and whether the officers were still inside the patrol vehicle when the shots were fired. Given these factual distinctions, we do not find Albarran persuasive.
b. Williams
The crimes in Williams arose out of the execution of an arrest warrant at a residence where seven men, all of whom had ties to the Gateway Posse Crips gang, were present. (Williams, supra, 170 Cal.App.4th at p. 596.) During a search of the residence, authorities located guns, one of which had "Crips" etched on it; ammunition; drugs and drug paraphernalia. (Id. at pp. 596-597.)
The defendant, who was one of the seven men but not the target of the arrest warrant, was convicted of a substantive gang offense and firearm, ammunition and drug possession offenses, and the jury found the ammunition and drug offenses were committed for the benefit of a criminal street gang. (Williams, supra, 170 Cal.App.4th at p. 595.) In addition to testimony by a gang expert on the Gateway Posse Crips, some of which specifically related to the defendant, the prosecutor introduced evidence of three prior crimes committed by the defendant, pursuant to Evidence Code section 1101, subdivision (b); evidence of 15 other police contacts and crimes involving the defendant; and evidence of eight predicate offenses, some of which involved the defendant. (Williams, supra, at pp. 598-602.)
On appeal, the defendant challenged the amount of gang-related evidence admitted. (Williams, supra, 170 Cal.App.4th at p. 595.) The Court of Appeal found that it was not an abuse of discretion to admit evidence of the three prior crimes committed by the defendant or to admit portions of the evidence for impeachment purposes. (Id. at pp. 607-608.) However, the court found that it was an abuse of discretion to admit evidence of prior arrests that did not result in convictions and to admit cumulative evidence on issues not reasonably in dispute, rejecting the trial court's view that "prosecutors have a[] right to 'over-prove their case or put on all the evidence that they have.'" (Id. at pp. 610-611.) Although the court concluded that no prejudice resulted, it stated, "The sheer volume of evidence extended the trial—and the burden on the judicial system and the jurors—beyond reasonable limits, and the endless discussions among the trial court and counsel concerning the admissibility of such evidence amounted to a virtual street brawl." (Id. at p. 611.)
In Williams, some of the cumulative evidence—more than a day and a half, at least—was quite literally a repeat of evidence already introduced. (Williams, supra, 170 Cal.App.4th at p. 610.) Here, no such repetition occurred, the prosecution's gang evidence did not extend the trial beyond reasonable limits and the trial court was not of the view that the prosecution was entitled to introduce unlimited evidence. Furthermore, the defendant in Williams admitted during his testimony that he had been a founding member and well-respected "'shot caller'" in the gang and that he sold drugs for a five-year period, although he denied sharing the profits with the gang. (Id. at p. 603.) In this case, defendant did not testify and there were no stipulations to any of the gang evidence. As such, we conclude that the concerns underpinning the decision in Williams are simply not present here.
c. Sanchez
In addition to the aforementioned factual distinctions, Albarran and Williams were decided prior to the California Supreme Court's decision in Sanchez, which fundamentally reordered the landscape of expert testimony. Sanchez considered the degree to which an expert witness may rely on hearsay evidence under state law and under federal law in light of the United States Supreme Court's decision in Crawford v. Washington (2004) 541 U.S. 36. "Sanchez 'jettisoned' the former 'not-admitted-for-its-truth' rationale underlying the admission of expert basis testimony, and occasioned a 'paradigm shift' in the law." (People v. Iraheta (2017) 14 Cal.App.5th 1228, 1246.) The court discussed general background versus case-specific facts, making clear that an "expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, at p. 685.) However, "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) Moreover, "[i]f the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Ibid.)
The record expressly reflects that in admitting the gang evidence, the trial court was mindful both of the constraints of Sanchez and of the absence of any stipulation to the gang evidence. The court concluded, "Because Sanchez now, instead of allowing a summary expert to testify in summary fashion with this evidence, requires the first hand information come in which, from a[n Evidence Code section] 352 perspective, one might perceive has a much different impact upon a jury. But it is now, by that language, clearly admissible. And I understand [defense counsel's] objection. And so the record is clear, I will continue to monitor each of these witnesses from a[n Evidence Code section] 352 perspective. If it appears to come to the point where it is prejudicial ... to the extent of an undue consumption of time or otherwise repetitive or duplicative the court will intervene. [¶] But given the intricacies of the gang enhancement and the gang charge at the present time I'm going to allow it" (Italics added.)
d. Conclusion
In sum, "Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. 'Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].'" (Tran, supra, 51 Cal.4th at p. 1047, quoting People v. Waidla (2000) 22 Cal.4th 690, 724.)
In contrast with evidence of prior uncharged misconduct admitted under Evidence Code section 1101, subdivision (b), to establish an intermediary fact, gang evidence introduced in a prosecution for a substantive gang offense or gang-related felonies "provides direct proof of several ultimate facts necessary to a conviction." (Tran, supra, 51 Cal.4th at p. 1048.) Therefore, the probative value of such evidence in a gang case is generally greater and its prejudicial effect generally less. (Ibid.)
In Tran, the defendant challenged evidence that he committed a prior offense on a separate occasion under Evidence Code section 352. (Tran, supra, 51 Cal.4th at pp. 1045-1046.) Tran involved a substantive gang offense and gang enhancements, and the California Supreme Court expressly held that the gang statute "allows a predicate offense to be established by proof of an offense the defendant committed on a separate occasion ...." (Id. at p. 1046.) The court also rejected the claim that this evidence violated Evidence Code section 352, explaining that "the prosecution cannot be compelled to '"present its case in the sanitized fashion suggested by the defense."'" (Id. at p. 1049.] "When the evidence has probative value, and the potential for prejudice resulting from its admission is within tolerable limits, it is not unduly prejudicial and its admission is not an abuse of discretion." (Ibid.)
Here, defendant claims the "voluminous amount of gang-related evidence" was "inflammatory, speculative and cumulative, and was not necessary for the prosecution to prove its case." Defendant points to the more than one dozen gang-related contacts with law enforcement, the admission of evidence that he was arrested but not convicted of various crimes, and the amount of evidence pertaining to his coparticipant, Khounvixay. Defendant asserts, "The introduction of this copious amount of gang evidence amounted to a continuous drumbeat of gang evidence to no discernible end other than to poison the jury. The overwhelming use of gang evidence at [defendant's] trial had no legitimate purpose other than causing the jury to convict him based on gang animus rather than the evidence."
We disagree. As previously stated, count 6 required the prosecutor to prove "(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang[]" (Albillar, supra, 51 Cal.4th at p. 56), and the prosecutor was required to prove that counts 1 through 5 "were (1) 'committed for the benefit of, at the direction of, or in association with any criminal street gang,' and (2) 'with the specific intent to promote, further, or assist in any criminal conduct by gang members[]'" (People v. Rivera, supra, 7 Cal.5th at p. 331). Proof that ABZ is a criminal street gang required the prosecutor to prove, relevant to defendant's claim, a pattern of criminal activity (predicate offenses) and engagement in at least one qualifying offense as a primary activity.
Moreover, post-Sanchez, prosecutors must introduce evidence of gang-related contacts through witnesses with personal knowledge rather than relying on a gang expert to summarize information gleaned from reports or conversations. As a result, criminal defendants may fairly anticipate a greater number of witnesses testifying on gang issues. While the parties might elect to stipulate to some evidence to counterbalance this effect, they are not required to do so and, here, they did not do so. As discussed, the absence of any stipulation was noted by the trial court and the record expressly reflects that the court's rulings regarding the admission of the gang evidence reflected its awareness of Sanchez's reach.
The prosecutor introduced evidence of only four predicate offenses and given the necessity of proving the elements of the substantive gang offense and gang enhancement, we do not agree that the number of gang contacts admitted constituted an abuse of discretion under Evidence Code section 352. We note that although the evidence establishing the gang contacts required multiple witnesses, the testimony of each was brief and the nature of the gang contacts was less inflammatory than the charged crimes. (Tran, supra, 51 Cal.4th at p. 1050.)
Only the predicate offense involving Johnny S. concerned a shooting.
With respect to Khounvixay and defendant specifically, the shooting in this case lacked the classic hallmarks of a gang-related crime. There was no evidence that either defendant or Khounvixay wore attire associated with ABZ, used any gang slurs or flashed any gang signs; defendant did not have any tattoos, gang or otherwise; and there was no evidence that the crime occurred in rival gang territory, targeted rival gang members or involved a gang-related, retaliatory motive. Rather, the evidence shows that Khounvixay, without any provocation, ordered defendant to shoot at the police and the prosecutor had to tie defendant's motive in committing the shooting to his allegiance to ABZ, which required he obey the command of a respected senior member or face consequences.
We reiterate that there were no stipulations regarding the gang evidence in this case and defendant's challenge to the evidence must necessarily be viewed through the lens of Sanchez. Under these circumstances, we reject defendant's claim that the risk of undue prejudice was so substantial that the court acted outside the bounds of reason in admitting it. (People v. Clark, supra, 63 Cal.4th at pp. 585-586.)
2. No Prejudice
We also conclude any error was harmless. As the parties agree, state law errors such as that claimed here are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, which requires a determination whether "it is ... reasonably probable that a result more favorable to [the] defendant would have been reached in the absence of the error ...." (Id. at p. 837; accord, People v. Aranda (2012) 55 Cal.4th 342, 354.) Although defendant's mental state was in dispute, the fact that he shot at police was not contested at trial. In addition to being placed at the scene by a witness who knew him, defendant confessed to his involvement during interrogation. Furthermore, statements he made during interrogation and in recorded phone calls from the jail established his involvement with and allegiance to ABZ. Therefore, even if we assume for the sake of argument that some portion of the gang evidence should have been excluded as cumulative, its admission did not result in a miscarriage of justice.
During closing argument, defense counsel focused on one, the absence of intent to kill the two officers, and on Officer Gueringer's position in the patrol vehicle in particular, and two, based on some equivocation in testimony regarding the order of the rapidly unfolding events, whether the officers were still in the patrol car when defendant fired. The jury, in relevant part, sought clarification whether shooting at an occupied motor vehicle meant aiming at versus in the direction of, and it sought readback of Officer Sullivan's, Officer Gueringer's and Janie C.'s testimony regarding the officers' positions respective to the patrol vehicle. The jury thereafter hung on the attempted murder of Gueringer and acquitted defendant of shooting at Barbara's occupied vehicle, instead convicting him on count 4 of the lesser included offense of discharging a firearm with gross negligence.
Although the jury's questions and verdicts do not speak directly to the gang charges, as defendant points out, they nevertheless reflect that the jury approached deliberations and the instructions thoughtfully and carefully. We are simply not persuaded that the gang evidence at issue in this case so inflamed the jury that it prejudged defendant, and we find no reasonable probability that he would have obtained a more favorable outcome had a portion of the gang evidence been excluded. (Tran, supra, 51 Cal.4th at p. 1048.)
II. Claim of Sentencing Error
A. Summary of Parties' Positions
Relevant to defendant's claim of sentencing error, the trial court described count 3, shooting at an occupied vehicle with a gang enhancement, as the "lead" count and sentenced defendant to 15 years to life under section 186.22, subdivision (b)(4)(B). The sentence was enhanced by an additional 20 years for the firearm enhancement under section 12022.53, subdivision (c). On count 2, the attempted murder of Officer Sullivan, the court sentenced defendant to a term of life with the possibility of parole, plus an additional 20 years for the firearm enhancement, and stayed the sentence under section 654. (§§ 664, subd. (e), 12022.53, subd. (c).)
Defense counsel objected to the selection of count 3 as the principal term and argued for the selection of count 2. Relying on section 1170.1, subdivision (a), and People v. Miller (2006) 145 Cal.App.4th 206, defendant claims on appeal that had the court selected count 2 as the principal term, it would have inured to his benefit by resulting in a potentially shorter sentence. He contends that the trial court was unaware of the scope of its sentencing discretion, as evidenced by its comment indicating it was required to select count 3 as the "lead" term, necessitating remand. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 ["'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'"].)
The People respond that, one, the trial court was in fact required by section 654, which applies to counts 2 and 3, to select "the longest potential term of imprisonment," and, two, the court erred in imposing a term of life with the possibility of parole on count 2 rather than a term of 15 years to life with the possibility of parole under section 186.22, subdivision (b)(5). Once the latter sentencing error is corrected on review, the resulting sentence for both count 2 and count 3 is 15 years to life, plus an additional 20 years for the firearm enhancement.
In reply, defendant submits on the argument in his opening brief without conceding the People are correct.
B. No Error
Section 1170.1, subdivision (a), provides: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. Whenever a court imposes a term of imprisonment in the state prison, whether the term is a principal or subordinate term, the aggregate term shall be served in the state prison, regardless as to whether or not one of the terms specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170."
There is no dispute that section 654 applies to counts 2 and 3. It provides, in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)
In this case, the trial court's reference to count 3 as the "lead" count was misplaced because attempted murder of a peace officer and shooting at an occupied vehicle when a gang enhancement has been found true both result in indeterminate life sentences (§§ 664, subd. (e), 186.22, subd. (b)(4)(B), (b)(5)), and "[s]ection 1170.1 ... applies only to determinate sentences" (People v. Williams, supra, 34 Cal.4th at p. 402; accord, People v. Felix (2000) 22 Cal.4th 651, 659 ["[B]oth straight life sentences and sentences of some number of years to life are indeterminate sentences not subject to the [Determinate Sentencing Act]."]; People v. Neely (2009) 176 Cal.App.4th 787, 797-798). Therefore, defendant erroneously relies on section 1170.1, subdivision (a), and People v. Miller, supra, 145 Cal.App.4th 206 to challenge the sentences on counts 2 and 3.
Turning to the People's claim of error, the attempted murder of a peace officer carries a term of life imprisonment with the possibility of parole under section 664, subdivision (e), which the parties and the trial court recognized. They appear to have overlooked section 186.22, subdivision (b)(5), however, which applies to count 2 by virtue of the jury's finding that the attempted murder of Officer Sullivan was gang related. (People v. Rodriguez (2019) 40 Cal.App.5th 194, 201 [discussing attempted premeditated murder and § 186.22, subd. (b)(5)]; People v. Arauz (2012) 210 Cal.App.4th 1394, 1404-1405 [same]; see People v. Lopez (2005) 34 Cal.4th 1002, 1007 [§ 186.22, subd. (b)(5) "encompass[es] both a straight life term as well a term expressed as years to life (other than those enumerated in subdivision (b)(4))"].) Section 186.22, subdivision (b)(5), provides, "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." Thus, under section 186.22, subdivision (b)(4)(B) and (b)(5), both attempted murder of a peace officer and shooting at an occupied vehicle result in sentences of 15 years to life in prison.
"[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Errors of this type are "'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid., citing People v. Welch (1993) 5 Cal.4th 228, 235.) "A claim that a sentence is unauthorized ... may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, citing People v. Scott, supra, at p. 354.) We agree with the People, and defendant does not dispute, that he should have been sentenced on count 2 under section 186.22, subdivision (b)(5). We shall modify the sentence.
III. Clerical Errors in Abstract of Judgment
Finally, defendant points out that the abstract of judgment in this case incorrectly reflects he was convicted in count 4 of discharging a firearm at an inhabited dwelling under section 246 rather than discharging a firearm with gross negligence in violation of section 246.3, subdivision (a). The People agree and point out that in addition, the abstract of judgment does not reflect the sentence on count 2 is stayed under section 654 and incorrectly reflects defendant was convicted in count 3 of violating section 246 by discharging a firearm at an inhabited dwelling rather than by discharging a firearm at an occupied vehicle.
When an abstract of judgment does not accurately reflect the judgment imposed, we have "the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties." (People v. Jones (2012) 54 Cal.4th 1, 89.) Accordingly, we shall order the correction of the abstract of judgment.
DISPOSITION
As to count 2 for attempted murder of a peace officer, the judgment is modified to reflect imposition of a sentence of 15 years to life in prison under section 186.22, subdivision (b)(5), enhanced by an additional 20 years under section 12022.53, subdivision (c), and stayed under section 654. The trial court shall issue an amended abstract of judgment reflecting the following: the aforementioned modification to count 2, stayed under section 654; a conviction for discharging a firearm at an occupied vehicle under section 246 on count 3; and a conviction for discharging a firearm with gross negligence under section 246.3, subdivision (a), on count 4. The trial court shall forward the amended abstract of judgment to the appropriate authorities.
Except as modified, the judgment is affirmed.
MEEHAN, J. WE CONCUR: HILL, P.J. LEVY, J.