Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06WF1592 William Lee Evans, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Luis Enrique Corcoles of being a felon carrying a loaded firearm in public (Pen. Code, § 12031, subd. (a)(1) & (2); all further statutory references are to this code unless otherwise stated; count 1), being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 2), possessing methamphetamine for sale (Health & Saf. Code, § 11378; count 3), and street terrorism (§ 186.22, subd. (a); count 4). It further found true that he had committed the first three crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and was personally armed during the drug offense. Defendant admitted a previous conviction of a serious and violent felony. The court sentenced defendant to 14 years, 8 months in prison.
Defendant contends his possession for sale conviction should be reversed because the court erred in denying his section 1538.5 motion to suppress the evidence supporting it. He also contends the evidence is insufficient to support the street terrorism conviction and the true finding on the gang enhancement and that the trial court erred in denying his motion to exclude gang evidence found in his jail cell.
In addition, we requested supplemental briefing on whether the sentence imposed for street terrorism should be stayed. We conclude section 654 does so require. In all other respects, the judgment is affirmed.
FACTS
During a robbery investigation, investigators Orlanzo Reyes and William Allison were conducting surveillance of a Ford Expedition parked at a hotel when they saw defendant standing on the balcony of an upper level room with his girlfriend, Andrea Chavez. After drawing defendant out to the truck with a ruse and identifying themselves as police officers, Reyes and Allison patted him down and found a loaded.45 caliber handgun, address book, cell phone, glass pipe, and some marijuana. Defendant identified himself as “Jackson Martinez” and had a false Georgia driver’s license under that name.
A search of the hotel room with Chavez’s consent revealed a loaded gun magazine fitting the handgun defendant was carrying, a duffel bag containing a firearm scope, a black ski mask with face area cut out, and a digitally locked safe. When defendant said he did not remember the combination to the safe, police later opened it and discovered a holster that fit defendant’s handgun, “numerous plastic ziplock baggies, ” including three containing methamphetamine, and an aerosol can with a false bottom and 20 additional baggies of methamphetamine inside. Also found in the safe were pay-owe sheets used to track drug sales. Reyes and Allison opined that the methamphetamine, which collectively totaled over 31 grams, was possessed with the intent to sell.
With Chavez’s consent, police also searched her car located in the hotel parking lot and discovered an album containing numerous photographs of her, defendant and members of the Hard Times gang. Defendant’s booking photographs showed he had multiple tattoos, including an “H” on one arm, a “T” on the other, “a devil or demon face” on his abdomen, and “OC” and a gangster holding a smoking gun in each hand, both on his chest.
While in jail awaiting trial, defendant was housed in Module K, Sector 18. A search of inmate Abel Perez’s cell in a neighboring sector turned up several “kites, ” which are “message slip[s] or small piece[s] of paper that inmates use to secretly pass messages between each other” and often contain valuable information about gang activity within the jail. One of the kites was a “roll call, ” i.e., a list of inmates in good standing with the gangs in a sector. It showed Perez was the “shot-caller” or leader of Module K and identified defendant as a member of “HTR” (Hard Times RIFA), one of the gangs in Module K, with the moniker of “Solo.” According to Seth Tunstall, a sheriff’s deputy in the “special handling gang unit” at the jail, an inmate listed on a roll call with a moniker and a gang name means he is a member of, or has claimed, that gang.
When Perez left the facility a few months later, inmate Chad Long took over as the shot caller. Sheriff’s deputy Christopher Streed observed defendant and Long talking, passing kites, and using a unique form of inmate sign language. Upon searching defendant’s cell, deputies found an accordion file containing gang-related kites, including roll calls of Hispanic gang members in the various sectors of Module K, their particular gang, their monikers, and their booking numbers. The roll call for sector 15 listed another Hard Times gang member and bore symbols that Hispanic gangs use to identify with the Mexican Mafia. Also discovered in the accordion file were kites with various messages and a police report about Long and letters to Long from others.
In a subsequent search of defendant’s cell, deputies located a dime-size kite wrapped in plastic, which turned out to be a letter addressed to Long from his “crime partner” and a fellow member of Long’s gang. They also found a letter from Long indicating who he wanted to take over as the shot caller when he left the jail.
The roll call listing defendant’s name was enough by itself for Tunstall to believe defendant was an active gang member. Defendant’s possession of kites containing gang information further demonstrated to Tunstall and Streed that he was an active and trusted gang member who was holding the kites for Long to protect his identity.
Gang expert detective Peter Vi testified that Hispanic gang members must put in work and produce income for the gang by robbing, stealing, and selling drugs. Gang members may commit crimes for personal benefit or necessity, but once their own needs are satisfied they generally will turn the rest over to the gang, thus benefitting both the gang member and the gang. A gang member with a gun is considered more reliable and respected within the gang and may use the gun in robberies and shootings, or for protection in drug transactions.
The Mexican Mafia controls Hispanic gangs in Santa Ana. Its approval is necessary to become a gang member and taxes must be paid to it by both the gang and the individual gang members who sell drugs on the street. If the taxes are not paid, the Mexican Mafia will place a “green light” for the gang and its members to be attacked by other Hispanic gangs; an individual gang member who fails to pay taxes and is later incarcerated may be assaulted while in jail.
Vi concluded defendant was an active member of the Hard Times criminal street gang when he committed the charged crimes based on his tattoos, prior police contacts, photographs found in Chavez’s car and the computer of a fellow gang member, the cell phone and address book seized from him, and the kites discovered in his cell. Hard Times’s primary activities include murder, firearms possession, felony tagging, making terrorist threats, and automobile theft.
Under a hypothetical set of facts similar to this case, Vi also opined defendant committed the firearm and narcotics offenses for the benefit of, and to promote, Hard Times. Although drug dealers in general carry guns for protection, possessing the gun to protect the drugs ultimately benefits the gang where, as here, taxes must be paid. The sale of drugs would benefit both defendant and the gang, which could use the money to pay taxes to the Mexican Mafia, to purchase weapons or narcotics, or to help gang members commit other crimes.
The lack of evidence defendant actually provided his gang with money from the sale of drugs or paid taxes did not change Vi’s opinion because he had information that Hard Times, in which defendant was an active participant, paid taxes and provided its members with drugs to sell. Nor was Vi bothered by the facts the pay-owe sheets did not mention Hard Times gang members or show how much tax was paid to the Mexican Mafia. Gangs typically only document sales to strangers and the channeling of taxes to the Mexican Mafia was generally handled by members higher up in the gang than defendant. Because defendant was a younger member, he was not responsible for tracking the taxes owed or paying the Mexican Mafia directly but rather only to collect the money and pass it on to more senior members. If defendant had failed to pay the taxes for selling drugs, he would have been “green lighted” in jail. The kites showed he was in good standing with the gang and that the taxes had been paid.
DISCUSSION
1. Motion to Suppress Evidence Supporting Possession for Sales Conviction
Defendant argues the court erred in denying his motion to suppress the evidence seized in the search of the safe because he did not voluntarily consent to it. The contention lacks merit.
a. Background
During the suppression hearing, officers testified about the surveillance of the truck, the ruse to draw defendant out of the hotel, the pat-down search, Chavez’s consent to the search of the hotel room, and the discovery of the safe. After defendant was handcuffed, arrested and placed in the patrol car, Reyes asked for permission to open the safe. Defendant responded “go ahead, but... he didn’t have the combination.” Reyes denied he or any other officer intimidated defendant into consenting. Officers seized the safe along with other items.
In a videotaped interview of defendant, who may have had one wrist handcuffed to the interview table for officer safety reasons, the following exchange occurred:
“Officer Reyes: Ok, one more thing. The, uh, safe that you have, do you got something that uh, you are trying to hide in there?
“[Defendant]: No.
“Officer Reyes: Do you mind if we open it and look in it?
“[Defendant]: Well, do you have a right to do it?
“Officer Reyes: Well I’m asking you.
“[Defendant]: No, if you don’t have my-if you don’t have consent to do it then no.
“Officer Reyes: You told us out there that we could. That is why we brought it with us. Now what did you change your mind for. What, do you have something to hide? You said you don’t know
“[Defendant]: Go ahead. Go ahead.
“Officer Reyes: Go ahead and look at it?
“[Defendant]: Yeah, I don’t know the code. I forgot... you put like four or five numbers in there.
“Officer Reyes: Do you know the numbers, because i[f] you know the numbers or not, I’m going to open it one way or another, so you going to make it easy?
“[Defendant]: No, I don’t know. Go ahead and open it.
“Officer Reyes: Alright.”
Defense counsel argued defendant did not consent to the search of the safe because he denied knowing the combination and regardless he later withdrew any prior consent and only said “go ahead” when Reyes implied he would incriminate himself if he refused. The trial court denied the motion to suppress, finding no “reason to doubt that there wasn’t consent out in the field” and that the issue was whether he had withdrawn that consent. It rejected defense counsel’s argument that Reyes’s question, “What, do you have something to hide” was in effect telling defendant he would incriminate himself if he did not consent and concluded the videotape of the interview showed no “browbeating coercion kind of setting in terms of tones of voices and things like that.”
b. Consensual Search
In reviewing denial of a motion to suppress, “[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) Consent to a search is an exception to the constitutional requirement of a warrant. (People v. Woods (1999) 21 Cal.4th 668, 674.) “Where, as here, the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
Citing Crofoot v. Superior Court (1981) 121 Cal.App.3d 717, defendant contends his consent to the search of the safe was not voluntary because Reyes’s assertion “that he should be willing to permit a search if, as he claimed, he had nothing to hide, improperly forced [him] to choose between his search[]and[]seizure rights and his right against self-incrimination.” In Crofoot, the defendant asked the officer why he wanted to search the defendant’s backpack and the officer inquired why the defendant objected, telling him he should not refuse if he had nothing to hide. The court found defendant’s consent was “‘no more than acquiescence to a claim of lawful authority....’” (Id. at p. 725.)
Here, unlike in Crofoot, defendant consented in the field to a search of the safe. He cites no authority requiring Reyes to request consent again at the police station. Rather, as the trial court found, Reyes talked about the safe to get defendant “to confess what’s in the safe before they even have to open it” and asked again for permission to look inside after defendant said he had nothing to hide. It was only when defendant refused to give his consent a second time that Reyes reminded him he had already told police they could search the safe, which was why they brought it to the station. In contrast to Crofoot where the officer challenged the defendant to explain why he refused to consent, Reyes simply asked why defendant had changed his mind since he had already said he was not hiding anything. Crofoot did not address this situation and cases are not authority for propositions not considered. (People v. Avila (2006) 38 Cal.4th 491, 567.)
Defendant also relies on the facts he was handcuffed and arrested during the questioning to show his consent was involuntary. But neither demonstrates a defendant’s consent is involuntary as a matter of law but rather are factors to be considered by the trial court in determining voluntariness. (People v. James (1977) 19 Cal.3d 99, 109; see also People v. Ratliff (1986) 41 Cal.3d 675, 686.) Defendant made the same argument in his motion to suppress and the trial court implicitly rejected it when it ruled the totality of the circumstances did not give rise to a “browbeating coercion kind of setting....”
2. Gang Enhancement
Defendant asserts the evidence is insufficient to support the finding he “promot[ed], further[ed] or assist[ed] criminal gang activity or” committed a crime “for the benefit of, in association with, or at the direction of a criminal street gang, ” as required for the gang enhancement to be imposed. He contends gang membership alone is insufficient to demonstrate a crime by a gang member was committed for the benefit of the gang (see People v. Robles (2000) 23 Cal.4th 1106, 1115) and notes the charged offenses did not take place in gang territory, he was with his girlfriend and not other gang members, and the only gang-related items found in his girlfriend’s car were some photos. Also there were no gang-related items in the hotel room or the safe, and the pay-owe sheets did not mention any members of Hard Times or payment to the gang.
Defendant relies on the rule that the opinion of an expert that a defendant acted for the benefit of a gang is insufficient, without more, to support a criminal street gang enhancement. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199; People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez).) Although Ferraez affirmed a criminal street gang enhancement, in that case, in addition to the expert’s opinion, the defendant admitted gang membership and that he had received permission from an associated gang to sell drugs at a swap meet. Defendant argues that because there is no similar evidence in this case, the true findings on the criminal street gang enhancement must be reversed. We disagree.
In Ferraez, supra, 112 Cal.App.4th 925, the defendant, an admitted gang member, was arrested for selling rock cocaine. The defendant said he had permission from another gang to sell the drugs at the location at which he was arrested. A gang expert testified the gang benefited from drug sales through the purchase of guns or more drugs or as bail for fellow gang members. The expert also testified that drug sales enhance the gang’s reputation.
Ferraez found the “gang expert’s testimony was necessary to explain to the jury how a gang’s reputation can be enhanced through drug sales and how a gang may use the proceeds from such felonious conduct, ” and therefore the matters were properly admissible under Evidence Code section 801. (Ferraez, supra, 112 Cal.App.4th at pp. 930-931.) It noted that “[u]ndoubtably, the expert’s testimony alone would not have been sufficient to find the drug offense was gang related” (id. at p. 931), but because the expert’s testimony “was coupled with other evidence from which the jury could reasonably infer the crime was gang related, ” the evidence was sufficient (ibid.).
Here, as in Ferraez, Vi’s testimony that defendant acted for the benefit of his gang was coupled with other evidence from which the jury reasonably could infer the crime was gang related. As defendant notes, “Vi described a system whereby any Hispanic criminal gang in Orange County who is selling methamphetamine is required to pay taxes every month to the Mexican Mafia in order to hold themselves out as a criminal gang. Vi believed [defendant] was selling drugs in order to obtain money for himself and to support the criminal activities of the Hard Times gang.”
According to defendant, Vi based his opinion on the assumptions that: “If a[] gang did not pay its taxes, a ‘green light’ would issue on the gang’s members and any other gangster would commit a violent assault on the members of the non-paying gang. Vi testified that if the Mexican Mafia found out [defendant] was selling drugs and he did not pay taxes, the Mexican Mafia would order a green light on [defendant]. Based upon [defendant] being included on secret gang roll calls[] and [defendant] having possession of other secret roll calls while he was in jail, Vi believed that [defendant] was in good standing with the Mexican Mafia. [¶] Vi told the jury that the fact [defendant] was in good standing with the Mexican Mafia meant that either [defendant] or other members of the Hard Times gang must have paid taxes to the Mexican Mafia based upon [defendant’s] drug dealing profits. Vi testified that Hard Times thereby benefitted from the drug dealing by being able to pay the taxes required for the privilege to operate as a criminal street gang.”
But these were more than mere assumptions. They were based on Vi’s 15 years of experience in the gang unit, his knowledge of the inner workings of Hispanic gangs and the Mexican Mafia, and the evidence of the numerous kites found in defendant’s cell.
Defendant maintains that although “Vi testified that Hard Times gang members had been involved in murders, possession of firearms, felony tagging, making terrorist threats, and auto theft, ” he did not mention drug dealing and acknowledged that gang members “do commit crimes on their own.” Additionally, according to defendant, Vi had no actual evidence defendant contributed to the taxes, supported gang activity with money from drug sales, or sold drugs at the direction of, for the benefit of, or in association with, Hard Times gang members.
We are not persuaded. Defendant does not dispute that gang members are required to support the gang or that he was an active member. Vi also had information the gang provided its members with drugs to sell. As for payment of taxes, Vi explained that was handled by senior members of the gang, which defendant was not. Had defendant not passed some of the proceeds from his drug sales to the gang to pay his taxes, he would have been green lighted in jail by the Mexican Mafia but instead his possession of the kites showed he held a trusted position and was in good standing. Moreover, the other drug-related paraphernalia, i.e., the false Georgia driver’s license, the aerosol can with the false bottom, and the digital safe, suggest defendant was part of a sophisticated drug organization, not merely a small time dealer.
Defendant compares the present case to In re Frank S., supra, 141 Cal.App.4th at p. 1199, where the court overturned the juvenile court’s finding that the minor possessed an illegal weapon with the specific intent to promote, further, or assist in conduct by gang members. The minor, who had been found with a knife, a small bindle of methamphetamine, and a red bandana, told the arresting officer he had been attacked two days earlier and he needed the knife for protection against gang members who believed he supported a rival gang. A gang expert testified the minor was an active member of the rival gang and he had the knife to protect himself, which benefited his gang.
The appellate court reversed the enhancement, finding that “nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife.” (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) “[U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang....’ [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang[ ]related and extends the purpose of the statute beyond what the Legislature intended.” (Ibid.)
In the case before us, the prosecution presented more than just Vi’s testimony about gangs in general and his opinion on the ultimate issue that the crimes were committed for the benefit of defendant’s gang. Vi explained how commission of the charged offenses benefited defendant’s gang, described the system of taxation, and tied that in with the evidence of the kites found in defendant’s jail cell.
While we recognize that it is the duty of the jury to acquit defendant if the circumstantial evidence is susceptible of two reasonable interpretations and one points to innocence, once the jury reaches its verdict we do not reweigh the evidence. Even if we were to conclude that the circumstantial evidence might lead to a different result, reversal is not mandated. Our task is to determine whether any reasonable trier of fact could have reached the same conclusion as the jury. (People v. Holt (1997) 15 Cal.4th 619, 668.) We conclude the evidence is sufficient to support the jury’s finding defendant committed his crime for the benefit of his gang.
3. Street Terrorism
Section 186.22, subdivision (a) punishes a “person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang....” The offense has three elements: “Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, ... ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity, ’ and... ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 523.)
Defendant challenges only the third element, contending his street terrorism conviction must be reversed because “there was no evidence to establish that [his] crimes were related to Hard Times criminal activity” (underscoring omitted) and “[t]he Legislature cannot have intended for a gang member to be convicted under subdivision (a)[] based upon the commission of any felonious criminal conduct, whether that felonious conduct is ‘gang related’ or not.” We need not decipher the Legislature’s intent because we have already determined there was substantial evidence that the charged crimes were gang related. Defendant’s conviction for street terrorism is affirmed.
4. Admission of Gang Evidence
Defendant argues the court erred in admitting the evidence found in his cell, on which Vi’s expert testimony was based, because the prosecution failed to establish “the preliminary fact that the offenses were gang[ ]related.” But he did not raise that issue in the trial court. Prior to trial, defendant filed a motion in limine to exclude the kites and letters found in his cell on the grounds the evidence was unduly time consuming and prejudicial (Evid. Code, § 352) and was not authenticated (id., § 403, subd. (a)(3)). His claim on appeal relies on a different code subdivision, namely that the evidence was inadmissible because “[t]he relevance of the proffered evidence depends on the existence of [a] preliminary fact” that was not established. (Id., § 403, subd. (a)(1).) The objection is forfeited. (People v. Doolin (2009) 45 Cal.4th 390, 448.)
Defendant maintains his “motion to exclude was more than sufficient to preserve the objections that there was a lack of preliminary fact for the jail kites and letters to be relevant to the issues....” We disagree. “Where, as here, the proffered evidence is allegedly imperfect because of the lack of preliminary proof, which might or might not have been supplied by the party offering such evidence, the objection must be specific and it must point out the alleged defect. If this is not done, the objection cannot be urged on appeal. [Citations.]” (People v. Tolmachoff (1943) 58 Cal.App.2d 815, 826.) Courts have held that an objection based on lack of foundation is insufficient and that the objecting party “must point out specifically in what respect the foundation” is lacking. (See, e.g., People v. Moore (1970) 13 Cal.App.3d 424, 434, fn. 8; see also People v. Modell (1956) 143 Cal.App.2d 724, 729-730.)
As for defendant’s contention the presentation of the evidence was unduly time-consuming, “[t]he admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) Under Evidence Code section 352, otherwise admissible evidence may be excluded if “its probative value is substantially outweighed by the probability that its admission will... necessitate undue consumption of time....” Defendant focuses only on the latter, noting the number of witnesses and the length of the portion of the reporter’s transcript comprising their testimony, and does not explain how that substantially outweighs the probative nature of the evidence on the gang allegations. In fact, he acknowledges the kites and letters were highly probative to whether his crimes were gang[ ]related by claiming the jury would have rejected the gang allegations without the evidence. By contrast, as the Attorney General points out, the testimony of the jail deputies was presented in under three hours and Vi completed his testimony in less than five hours. Under these circumstances, the trial court did not abuse its discretion in admitting the evidence.
5. Section 654
Defendant’s sentence of 14 years, 8 months consisted of the low term of 16 months doubled to 32 months on count 3 (possessing methamphetamine for sale), 3 years for the attached gang enhancement, 4 years for the firearm enhancement, and 5 years for the prior strike conviction. The court imposed concurrent 32-month terms (double the low term of 16 months) on both count 1 (felon carrying a loaded firearm in public) and count 4 (street terrorism), stayed the sentence on count 2 (felon possessing a firearm) under section 654, and struck 3-year terms for the gang enhancements attached to counts 1 and 2.
Under section 654, subdivision (a), “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.” Whether section 654 applies is generally a question of fact. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.) Thus, except in cases of “the applicability of the statute to conceded facts” (People v. Harrison (1989) 48 Cal.3d 321, 335), “the trial court’s finding will be upheld on appeal if it is supported by substantial evidence [citations].” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; see also People v. Andra (2007) 156 Cal.App.4th 638, 640.)
In Neal v. State of California (1960) 55 Cal.2d 11, the Supreme Court recognized the general rule that “[i]f only a single act is charged as the basis of... multiple convictions, ... the defendant can be punished only once. [Citation.]” (Id. at p. 19.) Neal also observed that because “[f]ew if any crimes... are the result of a single physical act, ” “‘section 654 has been applied not only where there was but one “act” in the ordinary sense... but also where a course of conduct violated more than one statute....’ [Citation.]” (Ibid.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Ibid.)
As People v. Latimer (1993) 5 Cal.4th 1203 pointed out, subsequent [d]ecisions... have limited th[is] rule’s applicability in various ways. Some have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment. [Citations.] [¶] Other cases have found separate, although sometimes simultaneous, objectives under the facts. [Citations.]” (Id. at pp. 1211-1212.)
In People v. Herrera (1999) 70 Cal.App.4th 1456, “the defendant was charged with a course of criminal conduct involving two gang-related, drive-by shootings in which two people were injured. [Citation.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1034.) The shootings were committed in retaliation against a rival gang who had shot at members of the defendant’s gang. We held that “under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant’s objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense.... Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess ‘two independent, even if simultaneous, objectives[, ]’ thereby precluding application of section 654. [Citation.]” (People v. Herrera, supra, 70 Cal.App.4th at pp. 1467-1468, fn. omitted.)
But here, the jury was instructed that to convict defendant of street terrorism, it had to find he had the personal intent to commit a particular felony to promote, further, or assist the gang in its felonious conduct. Specifically, the instruction read, “To prove the defendant guilty of [street terrorism] the People must prove, one, the defendant actively participated in a criminal street gang; two, when the defendant participated in the gang he knew that members of the gang have engaged in a pattern of criminal gang activity; three, the defendant willfully assisted, furthered, or promoted felonious conduct by members of that gang... by directly and actively committing a felony offense.” “[A] willful act” was defined as “one that is done willfully or on purpose” and “[f]elonious criminal conduct” was defined as “committing or attempting to commit any of the following crimes: 11378, Health and Safety Code, 12031(a)(1)[, ] (a)(2)(A), 12020(a)(1).... ”
Given these instructions and the guilty verdict on the charge, the jury necessarily had to find defendant had the personal intent and objective to commit one of these felonies to promote, further, or assist his gang in its felonious conduct. As to the listed felonies themselves, the jury found true defendant committed each of them for the benefit of the gang “with the specific intent to promote, further or assist in any criminal conduct by members of that gang, within the meaning of... [s]ection 186.22[, subdivision (b)(1).” In reaching this conclusion, the jury rejected the defense theory that defendant committed the crimes solely for his own personal benefit. Although he may have held both intents simultaneously, “those intents were not independent, ” but rather were “dependent on, and incident to, the other” (People v. Vu, supra, 143 Cal.App.4th at p. 1034) in light of Vi’s testimony that gang members such as defendant must produce and put in work for the gang by, among other things, selling drugs and using guns to protect against a “drug rip-off.” Because the jury determined defendant had the same objective and intent in committing street terrorism and the listed felonies, the trial court erred in imposing a separate concurrent sentence for street terrorism. That sentence must be stayed under section 654.
In light of this conclusion, we need not discuss the discord between the recent cases of People v. Sanchez (2009) 179 Cal.App.4th 1297 and People v. Mesa (2010) 186 Cal.App.4th 773.
DISPOSITION
The 32-month concurrent sentence on count 4 is ordered stayed pursuant to section 654 with the stay to become permanent upon defendant’s completion of the sentence imposed on count 3. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: O’LEARY, J.MOORE, J.