Opinion
B227566
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. JOVAN WILLIAM DAVIS, Defendant and Appellant.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA354723)
APPEAL from a judgment of the Superior Court of Los Angeles County. Norm Shapiro, Judge. Affirmed in part; reversed in part.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jovan William Davis appeals from his convictions for attempted premeditated murder and second degree robbery, both committed for the benefit of a criminal street gang. He contends: (1) the convictions of the substantive charges and gang enhancement were not supported by substantial evidence; (2) reversal of the gang enhancement warrants reversal of the convictions of the substantive charges; (3) the gang expert testified beyond the permissible scope of an expert; (4) admitting a videotape into evidence was error; and (5) consecutive sentences on the attempted murder and robbery counts violated section 654. We stay the sentence on the robbery count and otherwise affirm.
Defendant was charged with the attempted premeditated murder and second degree robbery of Thomas M. Enhancements for personal gun use causing great bodily injury and committing the offenses for the benefit of a criminal street gang were also alleged. A jury convicted defendant as charged and found true the enhancements. Defendant was sentenced to 40 years to life on count one (15 years to life for attempted murder, plus a consecutive 25 years to life for the gun use enhancement), plus a consecutive 38 years to life on count two (3 years for second degree robbery, plus a consecutive 25 years to life for the gun use enhancement, plus 10 years for the gang enhancement). He timely appealed.
All undesignated code references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
It is undisputed that on March 12, 2009, defendant shot Thomas M. in the neck at close range, immediately paralyzing Thomas from the neck down. Our summary of the facts is limited to those relevant to the only disputed issues: whether there was substantial evidence of intent and premeditation, a taking by force or fear, and of the gang enhancement, and whether section 654 applies.
A. The People's Case
Viewed in accordance with the usual rules on appeal (People v. Virgil (2011) 51 Cal.4th 1212, 1263 (Virgil)), the evidence established that in March 2009, defendant lived on the 4600 block of South Wilton Place, which was within the territory claimed by the criminal street gang known as the Rolling 40's; defendant was a member of the Rolling 40's and his moniker was "Cheddar Bob." Clive Usher was also a member of the Rolling 40's and lived across the street from defendant. Thomas, the victim, was familiar with the 4600 block of South Wilton Place because his grandmother lived there and because his job as a promoter for clients such as rappers Ice Cube and Tupac Shakur and boxing champion Floyd Mayweather, often brought him into the neighborhood. Thomas was not a gang member but was friends with members of the Rolling 40's, including Usher and defendant's uncle. It was not unusual for Thomas to be carrying between $500 and $1,000 in cash.
A gang expert testified that "Cheddar" is a slang term for money.
On March 12, 2009, after visiting Usher at his home, Thomas was walking back to his car when defendant called out to Thomas from his front porch and asked Thomas for a ride to his girlfriend's home a few blocks away. Unaware that defendant was going to that location to get a gun, Thomas agreed. When they arrived, Thomas acquiesced to wait for defendant to bring him back to Wilton Place. While waiting, Thomas turned his car around and pulled over. Defendant came back within a few minutes and sat in the front passenger seat of Thomas's car. Without saying anything, defendant pulled a silver firearm from somewhere on his right side, aimed it at Thomas's head and fired, shooting Thomas once in the neck and immediately paralyzing him. Still conscious, Thomas watched as defendant went through Thomas's pockets and removed $140, comprised of one $100 bill and two $20 bills, from Thomas's right front pants pocket. After putting the money into his own pants pocket, defendant got out of the car, closed the car door and ran north towards 48th Street. For 20 minutes, Thomas sat in his car gasping for air while cars drove past. Eventually someone stopped, saw Thomas's condition and called for help. In response to questions, Thomas told paramedics, "Cheddar Bob from 40 shot me." Thomas repeated the accusation to a police officer. Thomas spent two weeks in the hospital and seven months at Rancho Los Amigos Rehabilitation Center. He is now able to move only his left hand.
A ballistic expert testified that holes and gun residue on a blood-stained sweatshirt found in defendant's car suggest the gun was fired through the sweatshirt. Thomas was adamant that the gun did not fire accidentally; defendant drew the gun, aimed and fired at Thomas.
Los Angeles Police Officer Ara Hollenback and her partner were the first officers on the scene. Thomas was already in the ambulance when he told Hollenback that Cheddar Bob shot him; when Hollenback asked why, Thomas said, "I don't know why. I was just dropping him off." Defendant was arrested later that night. The arresting officers found a clear plastic baggy and about $2,850 in cash (including thirteen $100 bills and some $20 bills) on defendant's person; from inside defendant's car, they recovered a Yankees baseball cap, a cell phone and a blood-stained sweatshirt. Officers searching defendant's home found a black backpack containing a fully loaded blue steel .357 Smith & Wesson.
Defendant testified that his aunt and uncle lived in the house on South Wilton Place where the backpack was found. Defendant used to live with his mother and siblings in the house behind his aunt and uncle's house, but in March 2009 defendant was living with his girlfriend and her two children somewhere else entirely.
Thomas was in a coma for several days. On March 17 or 18, 2009, he was well enough to be briefly interviewed by Detective Mark Cleary. But Cleary had to read Thomas's lips because a tracheotomy and breathing tube made it difficult for Thomas to speak. Because of his precarious physical condition, Cleary did not ask Thomas details about the shooting. From a photographic six-pack lineup, Thomas identified defendant as his assailant. In an interview a few days later, Thomas said that defendant used a gray .25-caliber semiautomatic pistol. By March 24, Thomas's condition had improved and he was able to speak. Cleary videotaped an interview in which Thomas once again identified defendant as the person who shot and robbed him. For the first time, Thomas mentioned that defendant took money out of Thomas's pocket after shooting him.
In April 2009, DNA testing established that it was Thomas's blood on the sweatshirt found in defendant's car. A warrant for defendant's arrest was issued (defendant had been released from custody because, with Thomas in a coma and without the DNA results, there had not been enough evidence to hold him) and on April 15, defendant was arrested in Indiana; he voluntarily returned to California.
B. The Defense Case
Defendant testified he joined the Rolling 40's when he was 13 years old, got his gang tattoos when he was 14 or 15 years old and was still active when he was 16 years old. But by 2008, he was no longer in the gang. When asked about a DVD showing him flashing gang signs at a Rolling 40's party in April 2008, defendant admitted attending the party, explaining that he continued to "associate" with gang members in 2008; he maintained that he was not flashing gang signs, just twisting his wrist while dancing. In March 2009, defendant lived with his girlfriend and her two children on Garthwaite Avenue. On March 12, 2009, defendant drove to his uncle's home on South Wilton Place to watch a basketball game. While there, a friend called defendant and asked him to help dispose of a gun. Defendant agreed to help but did not want to drive his own car because he was afraid if stopped by the police and found in possession of a gun, he would go to prison. So when defendant saw Thomas, he asked Thomas to give him a ride to pick up the gun and then bring him back. Thomas agreed. While Thomas waited in the car, defendant got the gun from his friend. Defendant noticed that the hammer was cocked, but he did not know how to uncock it so he just put the gun in his sweatshirt pocket in the cocked position. As defendant was opening the passenger door of Thomas's car, he felt the gun slipping out of his pocket. When defendant grabbed for the gun, it accidentally discharged a single shot. Defendant was not hit but he got into the car to check Thomas's condition; defendant thought Thomas was dead because Thomas did not respond to defendant calling his name or shaking him. Panicked, defendant ran back to his uncle's home on South Wilton Place to ask his advice. Defendant threw the gun into a trash can behind the house. Unable to find his uncle, defendant got into his own car and drove away. He was stopped by police a few blocks away. Defendant falsely told the police he had nothing to do with the shooting. The gun police later found in the backpack at his uncle's house was not the gun that accidentally shot Thomas. Defendant testified that he had no reason to shoot Thomas, whom he considered a friend and a friend of the family. The shooting was an accident, which has caused difficulties for defendant and his whole family. He did not take any money out of Thomas's pockets.
C. Gang Expert Evidence
Los Angeles Police Officer John Flores testified as an expert on gangs, in particular the Rolling 40's, which is affiliated with the Crips gang. The term "40's" refers to the numbered blocks the gang claims as its territory: the area between King Boulevard on the north, 49th or 50th Street on the south, the 110 Freeway on the east and Crenshaw Boulevard on the west. The Rolling 40's is divided into four cliques: the Dark Side, Park Side, Original Western and Avenues. The primary activities of the Rolling 40's are narcotics sales, firearm possession, robbery, extortion, murder, attempted murder and driveby shootings. Membership in a gang is for life and members rise in the gang hierarchy by "putting in work," in other words, committing crimes. The more violent the crime, the more respect it engenders from other gang members for the perpetrator and the more nongang members are intimidated by the gang. It is this intimidation of nongang members that allows gangs to operate without getting caught. Flores was familiar with defendant as a self-admitted member of the Rolling 40's Avenues clique. Defendant used the moniker "Cheddar Bob" and had various tattoos that signified his membership in the Rolling 40's. Flores obtained a copy of a video of defendant at a Rolling 40's "Hood Day" party in April 2008. This videotape was played for the jury. Defendant can be seen making hand signs associated with the Rolling 40's. Based on a hypothetical using the facts of this case, Flores testified that he believed the crimes were committed for the benefit of the Rolling 40's gang. Flores based his opinion on the "ambush" like manner in which the crimes were committed - asking someone known to carry large amounts of cash to drive defendant to a location where defendant intended to acquire a gun, when defendant has his own car available. Flores conceded that if the shooting was an accident, it would not be gang related.
DISCUSSION
A. No Error In Admission of Expert Testimony
Defendant contends the trial court prejudicially erred in allowing the gang expert to testify beyond the permissible scope of an expert. As we understand his argument, it is that the expert's answers to hypothetical questions that incorporated the facts of this case amounted to an inadmissible opinion about defendant's subjective knowledge and intent. An identical contention was recently rejected by our Supreme Court in People v. Vang (2011) 52 Cal.4th 1038 (Vang), which was still under review at the time of briefing.
We review the trial court's admission of expert testimony for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.) It is well settled that expert testimony is admissible to establish the elements of a gang enhancement allegation. (Evid. Code, §§ 720, subd. (a), 801, subd. (a); Vang, supra, 52 Cal.4th at p. 1044; People v. Gardeley, (1996) 14 Cal.4th 605, 617 (Gardeley); People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) In Vang, our Supreme Court recently approved use of hypothetical questions that tracked the facts of the case to elicit testimony from a gang expert. However, the court reaffirmed the long standing rule that precludes an expert from testifying "whether the specific defendants acted for a gang reason . . . ." (Vang, at p. 1048.)
Here, the gang expert testified, based on a hypothetical question that tracked the facts of the case, that the hypothetical shooting and robbery were committed for the benefit of the gang. He explained, "gang members use tactics to commit crimes. What you described to me sounds like an ambush. He was being set up. [¶] And typically, gang members, they sometimes - well, they don't want to be caught with guns [in] their possession, so many times other people hold their guns for them, like girlfriends that are not on probation or that police will not be looking in their house for guns. [¶] So the gang member asks this person to drive him to the location, probably where his gun is at. He goes and gets the gun. Knowing that this person is known to carry hundreds of dollars on his person, that is very tempting to a gang member. It's easy money, where $140, even though that does not sound like a lot, it could take a person a day working a job to earn that, where a gang member can make that in a matter of seconds. [¶] Gang member comes out, shoots that person, and takes his money. He can - because doing an act like that, it will enhance his status within a gang. It's a very violent act. It will have other gang members respect him more, and that will in turn benefit the gang, because the gang member or the gang would like to have the members of its gang that are violent and respected by other people." The expert in this case did not improperly testify regarding defendant's intent, and defendant has not shown any error in the form of the question.
B. Admission of the Videotape Was Not Error
Defendant contends the trial court erred in admitting, during the prosecutor's rebuttal, the videotape of defendant attending an April 2008 Rolling 40's Hood Day party. He argues it was improper impeachment evidence inasmuch as defendant admitted attending the party. We disagree.
We review a trial court's admission of evidence for abuse of discretion. (People v. Garcia (2008) 168 Cal.App.4th 261, 274-275.) In People v. Roberts (2010) 184 Cal.App.4th 1149 (Roberts), two codefendants were convicted of conspiracy to commit murder and a gang enhancement was found true. At trial, one defendant denied being a gang member and the other claimed he had friendly relations with members of the rival gang so would not have sought to kill them. Over the defendants' Evidence Code section 352 objection, the trial court admitted photographs of them and others wearing gang colors, showing gang signs, displaying weapons and visiting grave sites of murdered fellow gang members. On appeal, the defendants argued that the testimonial evidence of their connection to the gang rendered the challenged evidence more prejudicial than probative. (Roberts, at pp. 1191-1192.) The appellate court found no abuse of discretion in admitting the challenged evidence.
Here, defendant denied being a member of the Rolling 40's at the time of the shooting. Although he admitted attending the Rolling 40's party in April 2008, he denied he did so as an active gang member. The videotape showing defendant making gestures that look like gang signs was thus probative of defendant's credibility when he said he was no longer a gang member in April 2008, which in turn was probative of the credibility of his denial that he was an active gang member in March 2009. The record shows that the trial court in this case, like the trial court in Roberts, was aware of its discretion to exclude the tape under Evidence Code section 352 and carefully considered its probative value, concluding that it was more probative than prejudicial. We find no abuse of discretion in that finding.
C. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support the attempted murder and robbery convictions, as well as the gang enhancement. We find substantial evidence supports conviction of both the substantive offenses and the gang enhancement.
The standard of review for a sufficiency of the evidence claim is well settled. We must determine " ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved. "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " [Citation.]' [Citation.]" (Virgil, supra, 51 Cal.4th at p. 1263.) The uncorroborated testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable. (People v. Canizalez (2011) 197 Cal.App.4th 832, 845, citing People v. Scott (1978) 21 Cal.3d 284, 296.)
1. Substantial Evidence of Intent to Kill and Premeditation
Defendant contends there was insufficient evidence of intent to kill and premeditation. He argues that Thomas's "credibility was suspect" because he did not mention the robbery the first few times he spoke to police, the physical evidence showed that the gun was fired from inside defendant's pocket, and there was no evidence of planning or motive. We disagree.
"Firing a gun toward a victim at a close range in a manner that could have inflicted a mortal wound had the bullet been on target supports an inference of intent to kill." (People v. Ramos (2011) 193 Cal.App.4th 43, 48.) "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) Known as the "Anderson factors," three types of evidence are generally relied upon to support a finding of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. (People v. Welch (1999) 20 Cal.4th 701, 758 (Welch), citing People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson)) Typically, a finding of premeditation is supported by substantial evidence when there is evidence of all three types, extremely strong evidence of planning, or evidence of motive and manner of killing. (Welch, at p. 758.)
Welch was overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 91.
Here, the record contains substantial evidence from which a reasonable juror could find intent to kill and premeditation. Thomas's testimony that defendant aimed a gun at Thomas's head and fired at close range in a manner that would have been fatal had the bullet been on target supports an inference of intent to kill. The premeditation finding is supported by extremely strong evidence of planning (it could reasonably be inferred that defendant lured Thomas to a place where he was alone in his car and where defendant could get access to a firearm); and manner of attempted killing (at close range, defendant aimed and fired at Thomas). This evidence of planning and manner of attempted killing was sufficient to support the finding of premeditation. That there was conflicting evidence which might also be reconciled with contrary findings does not warrant reversal. (Virgil, supra, 51 Cal.4th at p. 1263.)
2. Substantial Evidence of Taking by Force or Fear
Defendant contends the conviction for second degree robbery is not supported by substantial evidence. He argues that Thomas's testimony that defendant took a $100 bill and two $20 bills from Thomas's pocket is inherently improbable and physically impossible because Thomas's foot would necessarily have slipped off the brake if this occurred. First, we note that there was no evidence of where Thomas's foot was when he was found by paramedics - on or off the brake. Second, even assuming Thomas's foot was still on the brake, defendant's assertion that rifling through the pockets of a paralyzed person would necessarily have pushed that person's foot off the brake is not supported by any evidence. Third and finally, any conflicts between the physical evidence and Thomas's testimony were for the jury to resolve. (Virgil, supra, 51 Cal.4th at p. 1263.)
3. Substantial Evidence of the Gang Enhancement
Defendant contends the gang enhancement was not supported by substantial evidence. He argues that defendant's membership in the Rolling 40's was insufficient to establish that the crimes were committed for the benefit of the gang and with the specific intent to promote, further or assist in any criminal conduct by gang members. We disagree.
Section 186.22 is a provision of the California Street Terrorism Enforcement and Protection Act of 1988, also known as the STEP Act. (People v. Castenada (2000) 23 Cal.4th 743, 744-745.) When the charged offenses occurred in 2009, the statute read in part as follows: "(a) 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 . . . . [¶] (b)(1) . . . [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, [be punished] in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted. . . ."
Section 186.22 has since been amended, but there have been no changes to subdivisions (a) and (b)(1).
Violation of section 186.22, subdivision (a) is a substantive offense, the gravamen of which is participation in the gang itself. (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) Violation of subdivision (b)(1) results in an enhanced sentence. The scienter element of the substantive offense and the enhancement are essentially the same: intent to promote, further, or assist in any criminal conduct by gang members. The enhancement has the additional element that the crime to which the enhancement is attached must be gang-related. (People v. Galvez (2011) 195 Cal.App.4th 1253, 1260 (Galvez); see also People v. Albillar (2010) 51 Cal.4th 47, 56 (Albillar)[distinguishing between the criminal street gang enhancement and substantive offense].) Thus, for the enhancement to be found true, two prongs must be met. First, there must be evidence from which it is reasonable to infer that the underlying felony was "committed for the benefit of, at the direction of, or in association with any criminal street gang." Second, there must be evidence that the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (Gardeley, supra, 14 Cal.4th at pp. 615-616.) At issue here is whether, when a defendant acts alone to shoot and rob a victim, both prongs of the enhancement can be met. We answer the questions in the affirmative.
a. For the Benefit of Any Criminal Street Gang
The first prong, requiring evidence from which it can reasonably be inferred the underlying felony was gang-related, can be satisfied by expert testimony. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1)." (Albillar, at p. 63; Vang, supra, 52 Cal.4th at p. 1048.)
In Albillar, each of three gang members (twin brothers and their cousin) took turns raping the victim while the other two held her down. All three were convicted of various sex crimes as well as active participation in a criminal street gang (§ 186.22, subd. (a)).) Section 186.22, subdivision (b)(1) enhancements were also found true. (Albillar, supra, 51 Cal.4th at p. 54.) Our Supreme Court found the evidence sufficient to establish that the sex crimes were gang-related in two ways: (1) they were committed in association with the gang and (2) they were committed for the benefit of the gang. (Id. at p. 60.) That the crimes were committed for the benefit of the gang was supported by a gang expert's testimony that " '[w]hen three gang members go out and commit a violent brutal attack on a victim, that's elevating their individual status, and they're receiving a benefit. They're putting notches in their reputation. When these gang members are doing that, the overall entity benefits and strengthens as a result of it.' Reports of such conduct 'rais[e] the [] level of fear and intimidation in the community.' " (Id. at pp. 63, 71.)
Here, that the crimes benefited a criminal street gang can reasonably be inferred from the evidence that defendant was a member of the Rolling 40's criminal street gang, he committed the crimes in territory claimed by the Rolling 40's, and the gang expert's testimony that crimes such as occurred here are intended to benefit the gang by enhancing its reputation for viciousness, which gang members believe garners respect from the community. Thus, there was substantial evidence of the "benefit of" element of the enhancement.
b. Specific Intent to Promote/Further/Assist
To meet the second prong, there must be evidence from which it is reasonable to infer the defendant committed the underlying offense with the specific intent to promote, further or assist in any criminal conduct by gang members. (§ 186.22, subd. (b); Albillar, supra, 51 Cal.4th at p. 64.) " 'In common usage, 'promote' means to contribute to the progress or growth of; 'further' means to help the progress of; and 'assist' means to give aid or support. (Webster's New College Dict. (1995) pp. 885, 454, 68.)" (People v. Ngoun, supra, 88 Cal.App.4th at p. 436 [construing § 186.22, subd. (a)].)
The "any criminal conduct by gang members" element of the second prong can be satisfied by evidence that the defendant committed the underlying crime to promote/further/assist in some other crime by gang members. For example, in People v. Margarejo (2008) 162 Cal.App.4th 102 (Margarejo), the court affirmed a gang enhancement found true on the substantive offense of being a felon in possession of a firearm. The court concluded evidence that, instead of throwing the gun away the defendant gave it to another gang member constituted substantial evidence of the enhancement. The court explained, "The jury fairly could infer his goal was to preserve the gun for the gang's future use." (Margarejo, at p. 111.) But there is no requirement that the criminal conduct the defendant specifically intends to promote/further/assist be other than that upon which the substantive crime is based. (Albillar, supra, 51 Cal.4th at p. 66.) For example, in People v. Hill (2006) 142 Cal.App.4th 770 (Hill), the court affirmed a gang enhancement on a conviction for making criminal threats, reasoning that the defendant's own criminal conduct in making the criminal threat qualified as "any criminal conduct by gang members." (Id. at p. 774.) Evidence from which it is reasonable to infer that the underlying felony was committed to promote/further/assist the gang in the "maintenance of gang respect," can satisfy the promote/further/assist element. (See People v. Salcido (2007) 149 Cal.App.4th 356, 368 (Salcido)[construing § 186.22, subd. (a)].)
The promote/further/assist element is most often satisfied by evidence that the defendant committed the crime with other known gang members. From evidence the defendant "intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.) But it can also be satisfied by evidence that the defendant perpetrated a felony alone or with other non-gang members. Four cases are instructive: In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.); Hill, supra, 142 Cal.App.4th 770; Margarejo, supra, 162 Cal.App.4th 102; and People v. Sanchez (2009) 179 Cal.App.4th 1297 (Sanchez).
The issue of whether section 186.22 can apply to a gang member acting alone is currently before our Supreme Court. (People v. Rodriguez, review granted Jan. 12, 2001, S187680; People v. Gonzales, review granted Dec. 14, 2011, S197036; and People v. Cabrera, review granted March 23, 2011, S189414.)
In Frank S., the earliest of the four cases, the court found insufficient evidence to support a gang enhancement on a finding the minor possessed a concealed dirk or dagger where there was no 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. (Frank S., supra, 141 Cal.App.4th at p. 1199.) In Hill, the making criminal threats conviction and gang enhancement were based on evidence that after a fender-bender, the victim admonished the defendant to look where he was going; the defendant referenced his gang and accused the victim of disrespecting him, then left the scene but returned with a gun and threatened to shoot the victim; a gang expert testified that in gang culture taking action when one feels disrespected is important; defendant's conduct benefited the gang by showing that there were consequences to disrespecting a gang member. The court found the evidence sufficient to establish the promote/further/assist element of the enhancement, reasoning that the defendant was assisting himself in committing the underlying felony. (Hill, supra, 142 Cal.App.4th at p. 774.) In Margarejo, the court found evidence the defendant gave the gun to another gang member, instead of throwing it away, was sufficient to support the promote/further/assist element because it showed the defendant's intention to preserve the gun for future use by the gang. (Margarejo, supra, 162 Cal.App.4th at p. 111.) And in Sanchez, the court found the defendant gang member's commission of a robbery with a non-gang member accomplice satisfied the promote/further/assist element, reasoning that a "gang member who perpetrates a felony by definition also promotes and furthers that same felony." (Sanchez, supra, 179 Cal.App.4th at p. 1307.)
Frank S. is distinguishable from this case because here there was evidence the crimes occurred in territory claimed by defendant's gang. As in Margarejo, in this case there was evidence from which it could reasonably be inferred that the gun defendant acquired while Thomas waited in the car was a gang gun. Under the reasoning of the court in Sanchez, by committing the shooting and robbery, defendant by definition also promoted and furthered those same felonies by a gang member - himself. And under the reasoning of Salcido, supra, 149 Cal.App.4th at page 368, from the gang expert's testimony and the evidence that the unusually vicious crimes were committed in broad daylight, in territory claimed by defendant's gang, it is reasonable to infer that defendant committed the crimes to promote/further/assist the gang in the "maintenance of gang respect," fear and intimidation. The absence of evidence that the defendant harbored some personal animosity towards the victim, who by all accounts was a popular figure in the neighborhood, is consistent with an inference that defendant was motivated by a desire to promote and further his own and the gang's reputation for viciousness. Thus, we conclude that substantial evidence supported the finding that defendant committed the crimes for the benefit of the gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members.
Inasmuch as we affirm the gang enhancement, we need not address defendant's related contention that reversal of the gang enhancement undermines the validity of the convictions on the substantive offenses.
D. Section 654
In a supplemental brief, defendant contends imposition of consecutive sentences on the attempted murder and robbery counts violated section 654. He argues the crimes arose from a single course of conduct and therefore could not be separately punished.We agree.
Defendant's failure to object on section 654 grounds in the trial court does not constitute a waiver or forfeiture of the issue, because a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Bui (2011) 192 Cal.App.4th 1002, 1013, fn. 15 (Bui).)
Section 654, subdivision (a) precludes multiple punishments for a single act or indivisible course of conduct. Whether a course of conduct is divisible and therefore punishable under more than one statute depends on the intent and objective of the defendant. (People v. Hairston (2009) 174 Cal.App.4th 231, 240.) If the defendant had multiple or simultaneous objectives, he or she may be punished for each violation in pursuit of each objective. But if one offense was merely the means of accomplishing the other offense, the defendant harbored a single intent and therefore may be punished only once. (Ibid.; Galvez, supra, 195 Cal.App.4th at pp. 1262-1263.) Whether the defendant had more than one objective is a factual question, trial court determination of which will not be reversed on appeal unless unsupported by the evidence. (Hairston, supra, at p. 240.) Because this factual question is not an element of the offense, it may be established by a mere preponderance of the evidence. (See, e.g., People v. Harris (2009) 171 Cal.App.4th 1488, 1497-1498 [not true finding on enhancement does not preclude trial court from redetermining the issue for Proposition 36 purposes]; People v. Lewis (1991) 229 Cal.App.3d 259, 264 [not true finding on weapon-use enhancement did not preclude trial court from considering weapon use as a reason to impose consecutive sentences].) "We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) If the court makes no express section 654 finding, a finding that the crimes were divisible and thus subject to multiple punishments is implicit in the judgment and must be upheld if supported by substantial evidence. (People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
Where a murder (or attempted murder) is committed to facilitate a robbery, section 654 generally precludes separate terms for each such "indivisible" offense. (Bui, supra, 192 Cal.App.4th at p. 1015.) An exception to this general rule is an act of " 'gratuitous violence against a helpless and unresisting victim,' " which can be viewed as not incidental to the robbery for section 654 purposes. (Bui, at p. 1016.) In Bui, for example, section 654 did not preclude separate punishment for attempted murder and robbery where the defendant continued to shoot the victim even after he fell to the floor, face down, unable to move. And in People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272, section 654 did not preclude separate punishments where the defendant repeatedly hit the feeble, unresisting victim with a two-by-four, using far more force than necessary to achieve the robbery.
Here, implicit in the imposition of separate sentences is a finding that defendant had multiple objectives in shooting and robbing Thomas. We conclude no substantial evidence supports this finding. Immediately after firing a single shot, defendant rifled through Thomas's pockets without saying a word, taking the money he found there. The only reasonable inference from this evidence is that defendant shot Thomas just once to immobilize him so as to accomplish the robbery. In other words, the shooting was incidental to the robbery. That defendant could have used a less violent means to accomplish his objective is not determinative. Because there is no evidence that defendant had multiple criminal intents for counts one and two, sentence on count two must be stayed.
DISPOSITION
The judgment of conviction is reversed only as to imposition of consecutive sentences on counts one and two. The sentence imposed on count two is stayed, the stay to become permanent upon completion of the sentence for attempted murder. As a result, the total sentence will be reduced to 40 years to life, comprised of 15 years to life for attempted murder, plus a consecutive 25 years to life for the gun use enhancement. The trial court is directed to prepare a new sentencing minute order and a new abstract of judgment reflecting these changes and to send it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
RUBIN, ACTING P. J.
FLIER, J., Concurring and dissenting opinion
I concur in the lead opinion except I respectfully dissent from part C.3. of the Discussion, in which the lead opinion finds sufficient evidence to support the gang enhancement. I instead conclude that viewing the record in the light most favorable to the prosecution, no rational trier of fact could have found defendant guilty of the gang enhancement beyond a reasonable doubt.
Under Penal Code section 186.22, subdivision (b)(1), the prosecution was required to prove defendant Jovan William Davis's crimes were committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." "[T]he Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment . . . only if the crime is "gang related." ' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar))The enhancement applies "when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Id. at p. 68.) Mere gang membership is insufficient to support the gang enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 623 (Gardeley); In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.).) Because the prosecution failed to present evidence supporting either prong required by section 186.22, subdivision (b)(1), I would reverse the gang enhancement.
All statutory citations are to the Penal Code.
The lead opinion concludes that the following constituted substantial evidence defendant's crimes were committed for the benefit of the gang: "defendant was a member of the Rolling 40's criminal street gang, he committed the crimes in territory claimed by the Rolling 40's, and the gang expert's testimony that crimes such as occurred here are intended to benefit the gang by enhancing its reputation for viciousness, which gang members believe garners respect from the community." (Lead Opn., ante, at p. 13.) This evidence was insufficient.
A. Gang Membership
Our Supreme Court has made clear that gang membership is insufficient to support the gang enhancement. (Gardeley, supra, 14 Cal.4th at p. 623.) Instead, "the record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang." (People v. Martinez (2004) 116 Cal.App.4th 753, 762, italics omitted (Martinez).)The fact that defendant was a member of the Rolling 40's criminal street gang does not show that the attempted murder and robbery were for the benefit of his gang.
B. Territory Claimed by Gang and Community Respect in Territory
The location of defendant's crimes was irrelevant to the gang enhancement unless it supported the inference that the crime was committed for the benefit of the gang. To attempt to link the location to the gang, the lead opinion relies on Officer Flores's testimony that violent crimes enhance a gang's reputation for viciousness, which gang members believe garners respect from the community. Specifically, Flores testified that having a violent gang member benefits the gang because the "gang would like to have the members of its gang that are violent and respected by other people." Flores also testified that gang members commit crimes "within their regular community" because it maintains fear within the community and allows gang members to continue to commit crimes without being caught.
Officer Flores's unsupported testimony does not constitute substantial evidence. (Gardeley, supra, 14 Cal.4th at p. 618 ["'Like a house built on sand, the expert's opinion is no better than the facts on which it is based'"].) Here, no facts in the record support the inference that defendant, who was alone, was acting on behalf of the Rolling 40's criminal street gang, instead of on his own behalf, when he robbed and attempted to murder Thomas. There was no evidence defendant flashed gang signs, announced his gang, used a gun shared among gang members, shared the proceeds of the robbery with the gang, acted at the instruction of the gang, or intimidated anyone in the community during the instant crimes. Even the victim Thomas, who was familiar with gangs and friends with members of the Rolling 40's criminal street gang, did not claim the shooting was related to defendant's gang, testifying instead that "he didn't know" why defendant shot him.
Expert testimony supported by evidence that a crime benefits the gang because it instills fear in the community constitutes substantial evidence to support a gang enhancement. For example, in People v. Margarejo (2008) 162 Cal.App.4th 102 (Margarejo), the court found substantial evidence supported the finding that the defendant's flight from officers was for the benefit of his gang. In that case, as the defendant fled from officers he made gang signs to pedestrians unaffiliated with any gang. (Id. at p. 109.) An officer testified that "'the Highland Park gang [uses] intimidation and fear to create an air of terror in their communities, and by letting these people know that despite the fact that he's being pursued by the police, despite the fact that his arrest is imminent, he's still claiming that Highland Park gang is in charge of the area. He's creating an air for the common person, the average person on the street[,] of fear and intimidation . . . .'" (Ibid.)
Similarly, in Albillar, supra, 51 Cal.4th 47, the expert's testimony of gang crimes instilling fear in the community was supported. The expert testified that a gang rape benefitted the gang because "'[m]ore than likely this crime is reported as not three individual[ly] named Defendants conducting a rape, but members of [Southside] Chiques conducting a rape, and that goes out in the community by way of mainstream media or by way of word of mouth. That is elevating [Southside] Chiques' reputation to be a violent, aggressive gang that stops at nothing and does not care for anyone's humanity.'" (Id. at p. 63.) In support of the expert's testimony, there was evidence that the victim did not want to tell anyone about the rape because "'she feared that since the suspects were gang members they [would] come after her family.'" (Id. at p. 53.) When she did report the crime, the victim was threatened by another Southside Chiques gang member. (Ibid.) Thus, in Albillar testimony that the victim was afraid of reporting the crime and other members of the defendants' gang were aware of the crime and actually threatened the victim supported the expert's conclusion.
In contrast to Margarejo and Albillar, there is no evidence here linking defendant's crimes to intimidation of community members. There was no testimony that defendant made gang signs to Thomas or to persons in the community. Thomas was not afraid to report the crime and immediately told police that defendant shot him. Nor was there evidence that defendant's fellow gang members were aware of defendant's crimes or in any manner benefitted from the crimes. This case is distinguishable from Margarejo and Albillar because Officer Flores's testimony that defendant's crimes were intended to benefit his gang by enhancing his gang's reputation for viciousness, which in turn garnered respect from the community was rank speculation, not substantial evidence.
Several cases support this conclusion. In People v. Ochoa (2009) 179 Cal.App.4th 650, 662, the court reversed a gang enhancement finding expert testimony that stealing a car raises gang reputation in the community insufficient to support the enhancement. The court explained that although the expert "testified that the carjacking could benefit defendant's gang in a number of ways, he had no specific evidentiary support for drawing such inferences." (Ibid.) In People v. Ramon (2009) 175 Cal.App.4th 843, 851, the court found expert testimony that a stolen vehicle could be used to spread fear and intimidation insufficient to support gang enhancement. Similarly here, expert testimony that defendant's vicious crimes create intimidation in the neighborhood was insufficient to support the gang enhancement. (See also Martinez, supra, 116 Cal.App.4th at p. 757 [reversing gang enhancement because auto burglary not connected to the defendant's gang activities].) Because the record is devoid of evidence that defendant's crimes were gang-related, the gang enhancement must be reversed. (Ochoa, supra, at p. 663 ["[a]n appellate court cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition"].)
2. Specific Intent to Promote the Gang
The record also lacks support for the second prong of the gang enhancement - that defendant had the specific intent to promote, further, or assist in criminal conduct by gang members. To show intent, the prosecution was required to show defendant "had the specific intent when he committed the [crimes] to 'promote, further or assist' . . . gang members who themselves were engaged in criminal conduct." (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1359.) No evidence supported the inference that defendant was motivated to promote criminal conduct by gang members. Because there was no evidence defendant had the requisite specific intent, the gang enhancement must be reversed. (Id. at pp. 1363-1364 [gang expert testimony that robbery furthered gang because violent crime intimidates community insufficient to support gang enhancement]; Frank S., supra, 141 Cal.App.4th at p. 1199 [expert testimony without other substantial evidence insufficient to support intent element of gang enhancement].)
None of the cases cited by the lead opinion are analogous. In contrast to Margarejo, supra, 162 Cal.App.4th 102, in which the defendant gave his gun to another gang member suggesting an intent to preserve the gun for the gang's further use, here there was no similar evidence. (Id. at p. 111.) The distinction is important because the act of giving the gun to a fellow gang member supported the inference that the Margarejo defendant sought to promote or assist his gang. He was assisting it by sharing the gun with another gang member for later use. Here, in contrast, there is no evidence to support the inference that defendant sought to promote his gang.
Nor is this case comparable to People v. Hill (2006) 142 Cal.App.4th 770, in which the defendant specifically referenced his gang prior to committing a crime. Following criticism from another driver, the defendant referenced his gang and said that he had been "disrespected." (Id. at p. 772.) The defendant later returned and threatened the driver whom he believed had disrespected him. (Ibid.) Thus, in Hill, a reasonable juror could infer that the defendant's threat was an effort to promote the defendant's gang, which he had specifically referenced. Here, there was no similar evidence that defendant intended to promote his gang when he attempted to kill and robbed Thomas.
People v. Sanchez (2009) 179 Cal.App.4th 1297 is also distinguishable. In Sanchez, the court considered the substantive offense of gang participation (§ 186.22, subd. (a)) and rejected the defendant's argument that the promote/further/assist element could not "be satisfied by evidence that he was a direct perpetrator" of a crime. (Sanchez, at p. 1308.) Section 186.22, subdivision (a) is a substantive offense; its gravamen is the participation in the gang. (Albillar, supra, 51 Cal.4th at p. 55.) The Sanchez court held that a direct perpetrator may promote his gang. It did not hold that sufficient evidence supported the gang enhancement when a gang member commits a crime alone under circumstances evincing no intent to promote the gang. Indeed, in Sanchez, jurors found the gang enhancement not true. (Sanchez, at p. 1301.)
Finally, Frank S., supra, 141 Cal.App.4th 1192 cannot be meaningfully distinguished from the present case. In Frank S., a minor was convicted of possessing a dirk or dagger and a gang enhancement was found true. (Id. at p. 1194.) The court concluded, "In the present case, the expert simply informed the judge of her belief of the minor's intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the [defendant's gang] since 'it helps provide them protection should they be assaulted by rival gang members.' However, unlike 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 . . . .' (§ 186.22, subd. (b)(1).) 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." (Frank S., at p. 1199.)
The lead opinion endeavors to distinguish Frank S. on the ground that here the crimes were committed in territory claimed by the Rolling 40's criminal street gang. But Frank S. did not hold that the location of the crime in gang territory standing alone supported the inference that a crime was intended to promote the gang. Instead, Frank S. held that an expert's statement with nothing to support it does not constitute substantial evidence. Applying Frank S. here, the gang enhancement must be reversed. There was no evidence defendant intended to promote his gang when he robbed and attempted to murder Thomas. Even Officer Flores did not testify to that fact.
It is a truism to say that gang members commit crimes and that nongang-member citizens are intimidated by gangs. The very definition of a gang is an ongoing organization of three or more people who commit crimes. (§ 186.22, subd. (f) [including numerous violent crimes]; see also § 186.22, subd. (e).) However, "[n]ot every crime committed by gang members is related to a gang." (Albillar, supra, 51 Cal.4th at p. 60.) Here, the gang enhancement must be reversed because no evidence showed defendant's crimes were for the benefit of his gang or with the specific intent to promote his gang.
3. Prejudice
Defendant's argument that reversal of the gang enhancement also requires reversal of the substantive offenses lacks merit. Assuming for the sake of argument the evidence should have been excluded, defendant fails to show prejudice under any standard. The jury was instructed that the gang evidence could be considered only with respect to the charged enhancement. Thus, jurors could not have considered the evidence in evaluating the substantive offenses. Additionally, the evidence against defendant was overwhelming. Thomas identified defendant, and defendant admitted to having shot Thomas. While defendant claimed the shooting was merely an accident, his defense was exceedingly week in that his testimony of the gun slipping out of his pocket and trying to retrieve it "before it hit the ground and discharged" was inconsistent with the evidence that Thomas was shot in the neck. Moreover, defendant lied to Thomas about where he was going, fled the scene after the shooting, hid the weapon, and lied to officers when they caught up with him.
FLIER, J.
Grimes, J., Concurring and Dissenting
I concur in the Factual and Procedural Background and parts A., B., and C. of the Discussion section of the majority opinion. I dissent from part D. of the Discussion section insofar as it reverses the consecutive sentencing order. "The applicability of [Penal Code] section 654 depends upon whether a separate and distinct act can be established as the basis of each conviction. . . . It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished." (In re Chapman (1954) 43 Cal.2d 385, 389-390.) I do not find it reasonable to conclude defendant's vicious attempt to murder Thomas was only for the purpose of facilitating the robbery. Rather, I find substantial evidence that defendant gratuitously decided to kill Thomas to promote his gang and separately decided to take his money. There was no evidence from which it might be inferred that defendant had to shoot Thomas in the head to immobilize him in order to effectuate the robbery. Thomas was unsuspecting, unresisting, and unarmed. The only reasonable inference from the evidence is that defendant aimed the gun at Thomas's head and shot first, then rifled through Thomas's pockets to rob him, because defendant wanted to kill Thomas in cold blood and he also wanted to take Thomas's money.
The majority conclude in their opinion that there is substantial evidence of intent to kill and premeditation. "Thomas's testimony that defendant aimed a gun at Thomas's head and fired at close range in a manner that would have been fatal had the bullet been on target supports an inference of intent to kill. The premeditation finding is supported by extremely strong evidence of planning (it could reasonably be inferred that defendant lured Thomas to a place where he was alone in his car and where defendant could get access to a firearm); and manner of attempted killing (at close range, defendant aimed and fired at Thomas). This evidence of planning and manner of attempted killing was sufficient to support the finding of premeditation." (Maj. opn. ante, at pp. 10-11.)
The majority also conclude there is substantial evidence that defendant committed these crimes to benefit the Rolling 40's gang "by enhancing its reputation for viciousness, which gang members believe garners respect from the community." (Maj. opn. ante, at p. 13.) I cannot reconcile these conclusions, with which I wholeheartedly agree, with the conclusion that defendant harbored a single criminal intent to commit robbery. Our task is to view the evidence in the light most favorable to the judgment and to presume in support of the sentencing order every fact that may be reasonably deduced from the evidence. The trial court's findings may be implied from the sentencing order. When the trial court makes no reference to Penal Code section 654 during sentencing, "the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. [Citations.]" (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.) Guided by this standard of review, one must affirm the consecutive sentencing choice.
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GRIMES, J.