Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County No. 30105, John D. Kirihara, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Gomes, J., and Kane, J.
A jury convicted appellant Jose Covarruvias of two counts of the offense commonly known as street terrorism (Pen. Code, § 186.22, subd. (a); counts 2 and 5) and individual counts of shooting at an inhabited dwelling (§ 246; count 1), shooting at an occupied motor vehicle (§ 246; count 3), and assault with a semiautomatic firearm (§ 245, subd. (b); count 4). The jury also found true allegations that appellant committed the count 1 and 3 offenses for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(4), and that he committed the count 4 offense for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(B). In a separate proceeding, the court found true an allegation that appellant had suffered a “strike.”
All statutory references are to the Penal Code, and we refer to subdivision (a) of section 186.22 as section 186.22(a).
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
The court found appellant to be in violation of probation in another case, lifted the stay on the eight-year sentence previously imposed in that case, and imposed a total prison term of 68 years to life, consisting of the following: on each of counts 1 and 3, a term of 15 years to life under section 186.22, subdivision (b)(4)(B), doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), with the 30-year determinate portions to run consecutively, plus the previously suspended eight-year term. On each of counts 2 and 5 the court imposed concurrent four-year sentences, each consisting of the two-year midterm, doubled pursuant to the three strikes law, and on count 4 the court imposed, and stayed pursuant to section 654, a term of 17 years, consisting of the six-year midterm, doubled, plus five years for the gang enhancement (§ 186.22, subd. (b)(1)(B)).
On appeal, appellant contends the imposition of concurrent sentences on his section 186.22(a) convictions violated (1) the section 654 proscription against multiple punishment and (2) his rights under the double jeopardy clause of the Fifth Amendment to the United States Constitution. We will affirm.
FACTS
Events of January 7, 2005 – Counts 1 and 2
All references to dates of events are to dates in 2005.
Fourteen-year-old Juan D. testified to the following. At approximately 9 p.m. on January 7, he was sitting with two friends in the garage of a house on Johannisburg Drive in Livingston, with the garage door open, when a white car “first … came in slowly through another street,” at which point Juan heard what sounded like a bottle breaking. The car then drove away at a high rate of speed. Approximately five minutes later, Juan heard five gunshots.
This street is spelled in various ways in the reporter’s transcript. Respondent indicates the correct spelling is as set forth above.
Miguel Vega testified to the following. At approximately 9:00 p.m. on January 7, he was inside his house on Johannisburg Drive when he heard what sounded like a gunshot. He went outside and “all [he saw] was a white car pass by ….”
Flor Torres testified to the following. On January 7 at approximately 9:00 p.m., she was in the living room of her house at 2293 Johannisburg Drive, watching a movie with her daughter, when she heard a loud noise. Shortly thereafter, her daughter went into the kitchen and then told Flor things were “broken.” Shortly after that, Flor found “the jacket to a bullet,” and discovered a hole in the wall in one her kitchen cabinets. Flor’s house is “about one house down” from Michael Vega’s house.
The parties stipulated that if called to testify, Stanislaus County Deputy Sheriff Cramer would testify that on January 7, while employed as a police officer by the City of Livingston, he recovered a bullet from a kitchen cabinet in the house at 2293 Johannisburg Drive.
Jose Quiroz testified to the following. In January 2005, he and appellant were members of a street gang called the Primos. On January 7, Quiroz was a passenger in a car being driven by appellant when “some guy came out of [a] garage” and “started throwing gang signs.” Quiroz recognized the signs as those of a rival gang. Appellant made a U-turn, and he and Quiroz were “coming back,” driving slowly, when “they started throwing bottles at us.” At that point, appellant picked up a gun located near the gear shift, between Quiroz and him, and fired at least one shot out of the driver’s side window. As appellant shot, Quiroz yelled, “Primos,” and appellant drove off at a high rate of speed.
Events of January 15 – Counts 3, 4 and 5
Alfredo Rubalcava testified to the following. At approximately 9:56 p.m. on January 15, he and four other persons were in a car, stopped at a red light, when a white car, driven by appellant, pulled up next to them. Rubalcava was driving.
Appellant was driving the car that stopped next to Rubalcava’s car. While both cars were stopped, appellant displayed a gang hand sign. When the light changed, Rubalcava drove off. Appellant delayed a moment, and then began following Rubalcava. Rubalcava made three turns, and each time appellant turned and continued following. As Rubalcava was making a fourth turn, appellant went straight, at which point Rubalcava heard between one and three shots.
Fourteen-year-old Eric R. testified to the following. On January 15 at approximately 9:00 to 10:00 p.m., he was a passenger in a car being driven by his brother, Alfredo Rubalcava, when the car he was in was “chased” by a white car. At one point, when Alfredo was making a turn, Eric saw the passenger in the white car, Jose Quiroz, “[take] out the gun” and extend his arm. Eric heard two shots. The two cars were approximately 15 feet apart at the time.
Quiroz testified to the following. At approximately 10:00 p.m. on January 15 he and appellant were in appellant’s car when appellant, who was driving, pulled up next to another car at a stop light. Words were exchanged between the occupants of the two cars, and appellant and Quiroz “threw them a gang sign.” Shortly thereafter, appellant and Quiroz “started chasing” the other car, and as the other car made a right turn, Quiroz picked up a gun that was next to him on the console and started shooting at the other car.
Testimony of Gang Expert
City of Atwater Police Officer Christian Hambrecht testified that “Los Primos” is the name of a criminal street gang, and that the “primary activities” of that gang are “[s]hootings, car theft, [and] threats.” Officer Hambrecht opined that the commission of a violent act by a gang member would “benefit” the gang because such an act “would bolster their reputation as being violent, [and] hence people would be less likely to report them committing crimes.” He further opined that the January 7 and January 15 offenses were committed with the intent to promote gang activity, based on the fact that “a shot was fired at what was believed to be a rival gang member.”
DISCUSSION
Section 654As indicated above, appellant stands convicted in counts 2 and 5 of street terrorism in violation of section 186.22(a). Appellant argues that because the “only evidence … regarding count 2” was “the same evidence offered to prove the charges in [count] 1,” and “the only evidence … regarding count … 5” was “the same evidence offered to prove the charges in [counts] … 3 and 4,” the court erred in failing to stay execution of sentence on counts 2 and 5 pursuant to section 654.
Section 186.22(a) provides: “Any 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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
Section 654 “prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective.” (In re Jose P. (2003) 106 Cal.App.4th 458, 469 (Jose P.).) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466 (Herrera).)
Section 654, subdivision (a) 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.”
“Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.” (People v. Deloza (1998) 18 Cal.4th 585, 592.) “If … a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.” (Id. at pp. 591-592.)
In Herrera, the court held that the defendant could be punished for both attempted murder (two counts) and street terrorism where the latter offense arose from the gang-related shooting incident which gave rise to the attempted murder charges. The court reasoned, “[t]he characteristics of attempted murder and street terrorism are distinguishable ….” (Herrera, supra, 70 Cal.App.4th at p. 1466.) The court explained, “In the attempted murders [the defendant’s] objective was simply a desire to kill…. [T]he identities (or gang affiliations) of his intended victims were irrelevant.” (Herrera, supra, 70 Cal.App.4th at p. 1467.)
“In contrast, section [186.22(a)], encompasses a more complex intent and objective…. [¶] … It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section [186.22(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(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.” (Herrera, supra, 70 Cal.App.4th at pp. 1467-1468, fns. omitted.)
The court added that a contrary interpretation “would render section [186.22(a)] a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. ‘[T]he purpose of section 654 “is to insure that a defendant’s punishment will be commensurate with his culpability.” [Citation.]’ [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes.” (Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.)
Relying on the analysis set forth in Herrera, the court in Jose P.rejected the minor’s argument that the juvenile court violated section 654 by including in the minor’s maximum period of confinement nine years for a home invasion robbery and eight months for street terrorism. The court stated: “The minor’s intent and objective in violating section 186.22(a) necessarily must have been participation in the gang itself. Evidence of that intent was abundant…. [¶] His intent and objective in committing the robbery was to take the property located in the home. Application of the enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery.” (Jose P., supra, 106 Cal.App.4th at p. 471.)
In the same way, as to each of the incidents at issue in the instant case, there was sufficient evidence for the court to conclude appellant possessed two independent even if simultaneous criminal objectives: (1) to actively participate in a criminal street gang and (2) to discharge a firearm, at an occupied dwelling on January 7 and at an occupied motor vehicle on January 15. Therefore, as to each incident, the court properly determined that punishment for the street terrorism offense need not be stayed pursuant to section 654.
Appellant attempts to distinguish Jose P. and Herrera. He argues the intent required for robbery and that required for attempted murder were “separate” from the intent required for street terrorism, whereas “[i]n contrast, the record in this case establishes that the objective of all the alleged offenses was to benefit or promote the criminal street gang.” We disagree. For the offense of discharging a firearm at an occupied house or car (§ 246), as with a robbery and attempted murder, “the identities (or gang affiliations) of [the] intended victims were irrelevant.” (Herrera, supra, 70 Cal.App.4th at p. 1467.) Just as the Herrera and Jose P. courts found separate intents, in the instant case, as indicated above, the court reasonably could have concluded that appellant’s intent in committing the section 246 violations was to shoot at the occupants of a dwelling or a car and that appellant acted with a separate, albeit simultaneous objective in violating section 186.22(a), viz., to actively participate in a criminal street gang. Herrera and Jose P. are directly on point.
Appellant also argues that Herrera and Jose P. were wrongly decided. In essence, appellant’s argument is that the Herrera and Jose P. courts erroneously identified the criminal objective, for section 654 purposes, in committing the offense of street terrorism as the intent “to actively participate in a criminal street gang.” (Herrera, supra, 70 Cal.App.4th at p. 1467.) While not disputing that active participation in a street gang is an element of section 186.22(a), appellant finds the relevant intent and objective, for section 654 purposes, in the second element of 186.22(a), viz., that the accused must “willfully promote[], further[], or assist[] in … felonious criminal conduct by [gang members] ….” (§ 186.22(a)). To promote, further, or assist felonious gang conduct is the criminal objective in committing a violation of section 186.22(a), he argues. And because that was also his intent in committing the section 246 violations, he argues further, he acted with a single intent, and therefore section 654 precludes multiple punishment.
Thus, appellant’s dispute with Herrera and Jose P. is over the question of how finely to parse his criminal objectives. Under the Herrera/Jose P. analysis, appellant acted with multiple objectives (to shoot at a car or dwelling and actively participate in a gang) whereas appellant’s view is that he acted with a single objective (to promote, further, or assist felonious gang conduct). Appellant’s intent in committing the offenses in question can be characterized in various ways, including the two summarized above, and in the abstract, both views are correct. But the question before us is not an abstract one. Rather, it is one of statutory interpretation. And in our view, the manner in which the Herrera and Jose P. courts parse the various criminal objectives is truer to “the purpose of section 654,” which is “‘to insure that a defendant’s punishment will be commensurate with his culpability.’” (People v Latimer (1993) 5 Cal.4th 1203, 1211.) As indicated above, “if section 654 were held applicable here, it would render section [186.22(a)] a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang.” (Herrera, supra, 70 Cal.App.4th at p. 1468.) Accordingly, we reject appellant’s claim that Herrera and Jose P. were wrongly decided.
Appellant contends the Herrera analysis of the intent and objective of committing a violation of section 186.22(a) is precluded by People v. Gardeley (1996) 14 Cal.4th 605. In that case our Supreme Court stated that the Street Terrorism Enforcement and Prevention Act, of which section 186.22(a) is a part, “does not criminalize mere gang membership; rather, it imposes increased criminal penalties only when the criminal conduct is felonious and committed not only ‘for the benefit of, at the direction of, or in association with’ a group that meets the specific statutory conditions of a ‘criminal street gang,’ but also with the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Gardeley, supra, 14 Cal.4th at pp. 623-624.) Appellant argues that this statement supports his claim the gravamen of section 186.22(a), and therefore the relevant intent for section 654 purposes, is “the intent to promote illegal conduct by the gang, not mere participation.” However, we need not enter into a debate as to what the gravamen of the offense is. Gardeley does not address the question of the intent and objective, for section 654 purposes, of committing an act of street terrorism. Therefore, it has no bearing here. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 [“cases are not authority for propositions not considered”].)
Double Jeopardy
Appellant also argues that the court’s failure to stay execution of sentence on appellant’s section 186.22(a) convictions violated his rights under the double jeopardy clause of the Fifth Amendment to the United States Constitution.
Appellant bases this argument on the principle that “[o]ne of the constitutional protections against double jeopardy is the protection ‘against multiple punishments for the same offense.’” (People v. Sipe (1995) 36 Cal.App.4th 468, 489.) The rule for determining whether two offenses are the same for purposes of double jeopardy is as follows: If “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Blockburger v. United States (1932) 284 U.S. 299, 304.) The United States Supreme Court “[has] often concluded that two different statutes define the ‘same offense,’ typically because one is a lesser included offense of the other.” (Rutledge v. United States (1996) 517 U.S. 292, 297, fn. omitted.)
As to the offenses of street terrorism and shooting at an occupied dwelling or vehicle, each offense requires proof of elements that need not be established to prove the other. Therefore the two offenses are not the same for double jeopardy purposes. Accordingly, appellant’s double jeopardy challenge fails.
DISPOSITION
The judgment is affirmed.