Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. BA299985, Robert J. Perry, Judge.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Ruben Dixon appeals from the judgment entered after he was convicted of attempted first degree murder. We modify the abstract of judgment to correct certain clerical sentencing errors, but otherwise affirm, holding that admitting evidence of his gang membership was harmless error and that he received adequate notice of a personal firearm use sentence enhancement.
FACTS AND PROCEDURAL HISTORY
Troy Warren lived in an upstairs apartment and had a long-simmering dispute with his downstairs neighbor because one of the neighbor’s children kept throwing eggs at Warren’s front door. In or about February 2006 Warren called the police when his door was egged again. Ruben Dixon, who was a sibling of the downstairs neighbor’s children, angrily confronted Warren after the police arrived, leading the police to break up the dispute. Warren had seen Dixon only a few times before this and had never spoken to him. Warren had seen Dixon’s brother, Anthony Mesa, many times and believed Mesa sometimes lived in the downstairs neighbor’s unit.
At around 5:30 p.m. on March 6, 2006, Warren was walking toward his apartment building when he saw Dixon and Mesa walking in his direction. Because of the earlier dispute, Warren tried to avoid and evade Dixon and Mesa. They followed him back to the apartment building and, at some point, Dixon caught up to Warren and pointed a gun at Warren’s head from just six inches away. Dixon said “Remember me[?]” and pulled the trigger. Warren had moved his head out of the way just before, however, and the bullet missed. Warren ran off with Mesa and Dixon in pursuit. Several more rounds were fired as Warren ran, one of which struck him in the right shoulder blade. According to Warren, only Dixon was carrying a gun. Dixon and Mesa fled, and Warren called 911 to report that he had been shot by his neighbors over a dispute.
Based on photographic six-pack displays, Warren identified Dixon as the shooter and Mesa as his accomplice. Dixon was arrested several weeks later and gave a false name to the arresting officer. No physical evidence linking Dixon to the shooting was found. Dixon was charged with attempted first degree murder. (Pen. Code, §§ 187, subd. (a)/189/664.) The information also alleged that: a principal personally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)); Dixon personally inflicted great bodily injury (§ 12022.7, subd. (a)); the offense was a serious felony (§ 1192.7, subd. (c)(8)); the crime was committed for the benefit of a street gang (§ 186.22); and Dixon had a prior conviction under the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d) and for purposes of section 667, subdivision (a)(1)).
All further undesignated section references are to the Penal Code.
The jury convicted Dixon of attempted first degree murder and found true under section 12022.53, subdivision (d) that Dixon personally discharged a firearm, causing great bodily injury. Dixon admitted his Three Strikes and section 667 prior convictions. The street gang allegation, which the trial court had bifurcated, was dismissed by the prosecution before being tried. The court imposed a sentence of 14 years to life without parole for the attempted murder, a consecutive term of 25 years to life for the firearm discharge causing great bodily injury allegation, plus another consecutive 5 years under section 667, subdivision (a)(1).
On appeal, Dixon contends: (1) the trial court erred by allowing evidence that he and Mesa were gang members; and (2) he was never given notice that the section 12022.53, subdivision (d) enhancement for personal firearm use causing great bodily injury applied to him.
DISCUSSION
1. Use of the Gang Evidence Was Harmless Error
Dixon, Mesa, and another of their brothers were members of the Temple Street Gang, which operated in the area where Warren lived. In response to a defense objection, the trial court agreed to bifurcate the issue of the street gang benefit allegation, but said it would allow gang membership evidence during the initial phase of the trial solely in order to show that Warren believed Dixon and Mesa belonged to a neighborhood group and that, as members of the same gang, knew each other and were therefore likely to be together. Even so, the trial court was troubled by the gang allegation because the facts indicated that family ties, not gang membership, motivated the attack on Warren.
At trial, Warren testified that he had been told gang members lived in his neighborhood, but except for staring him down or not speaking to him, he had no problems with them. A police gang unit officer testified that Dixon, Mesa, and another brother were all members of the Temple Street gang. The officer had had several contacts with Dixon, and both Dixon and Mesa admitted their gang membership to the officer. The officer also testified that Dixon had a gang tattoo on his neck. The trial court instructed the jury that Dixon was not on trial for his gang membership and that it was to use the gang evidence for one purpose only: to show that there was some association between Dixon and Mesa due to their gang membership.
Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. (People v. Avila (2005) 127 Cal.App.4th 185, 192.) Even when relevant, it may be highly inflammatory, and the trial courts should carefully scrutinize the evidence before admitting it. (People v. Williams (1997) 16 Cal.4th 153, 193.) We review the trial court’s ruling under the abuse of discretion standard, and, even if error occurred, will not reverse unless a different result was reasonably probable had the evidence been excluded. (Avila, supra, at pp. 193-194.)
Warren contends the trial court erred by admitting the gang evidence because there was no evidence that Dixon and Mesa attacked him as part of some gang-related activity. Respondent contends the evidence was sufficiently probative of the shooter’s identity because Dixon’s and Mesa’s gang membership made it likely they would have been in each other’s company. Respondent’s point is not particularly persuasive. The evidence shows that Dixon and Mesa were not together for any gang-related purpose but were instead acting in concert because they were brothers who wanted revenge against Warren after he called the police on another of their siblings. It appears that consanguinity, not associational affinity brought them together for that purpose and made it likely they would have been acting in concert. If so, then the only “hood” relevant here was brotherhood and their gang membership was marginally relevant on this issue.
We need not resolve that issue, however, because even if error occurred, it was not prejudicial. The case came down to a credibility contest between Warren on the one hand, and Dixon’s wife, who testified that Dixon was with her when Warren was shot. The jury also heard from the manager of Warren’s apartment building, who confirmed that there had been disputes between Warren and his downstairs neighbor’s children. We do not believe the jury was inflamed to resolve this evidentiary conflict based on the gang membership evidence for three reasons. First, the fact that Dixon and Mesa were brothers seeking revenge on behalf of their sibling was a far more powerful indicator of both motive and identity and was therefore far more likely to have influenced the jury. Second, the jury was instructed to use the gang evidence only when considering the likelihood that Dixon and Mesa would associate together, and we presume it followed that instruction. (People v. Coffman (2004) 34 Cal.4th 1, 83.) Third, despite Dixon’s contention that the prosecutor relied heavily on the gang evidence during closing argument, the record shows otherwise. When discussing the circumstantial evidence that supported Warren’s testimony, the prosecutor reminded the jury that Dixon and Mesa were brothers, and “[n]ot only are they brothers, they’re in the same gang. [¶] These facts make it likely that they would be together when this happened.” According to the prosecutor, the motive for this crime was that Warren was “messing with [Dixon’s] family.” While the prosecutor relied on the gang evidence, it was secondary to the fact that Dixon and Mesa were brothers acting out of family vengeance, and the gang evidence was therefore not likely to have swayed the jury. We therefore hold that a different result was not reasonably probable and that the error was harmless. (People v. Avila, supra, 127 Cal.App.4th at pp. 193-194.)
2. Dixon Received Adequate Notice of the Firearm Use Enhancement
Section 12022.53, subdivision (d) provides a sentence enhancement of 25 years to life to any one who personally and intentionally fires a gun and proximately causes great bodily injury during an attempted murder. (See § 12022.53, subds. (a)(1), (18).) The enhancement also applies to someone who was a principal in that offense so long as another principal fired the shot that caused the great bodily injury and the shooting was for the benefit of a street gang under section 186.22. (§ 12022.53, subd. (e)(1)(A).) The information filed against Dixon alleged that a principal personally fired a gun causing Warren great bodily injury pursuant to section 12022.53, subdivisions (d) and (e)(1) and also alleged that the crime was committed for the benefit of a street gang under section 186.22. When the case went to the jury, it was not instructed to determine whether a principal had fired a gun, causing great bodily injury. Instead, it was instructed to determine whether Dixon had done so. It made that finding on a verdict form that specifically referred to section 12022.53, subdivision (d), and Dixon’s sentence was enhanced accordingly. Dixon contends his statutory and due process notice rights were violated because he was not given sufficient notice that he was subject to an enhancement for personal gun use under section 12022.53, subdivision (d). We disagree.
First, section 12022.53, subdivision (j) requires only that the existence of facts required under subdivision (d) be alleged in the information. (People v. Riva (2003) 112 Cal.App.4th 981, 1001 [section 12022.53 requires only that the facts necessary to sustain the enhancement be alleged in the information; it does not say where in the information those facts must be alleged or that they must be alleged in connection with a particular count to apply to that count].) In addition to the allegation that a principal had personally discharged a firearm causing great bodily injury, the information alleged that Dixon committed a serious felony under section 1192.7, subdivision (c)(8), which applies to a defendant who personally inflicted great bodily injury or personally used a firearm during a felony. The information also alleged that Dixon personally inflicted great bodily injury under section 12022.7, subdivision (a). Both apply only when the person charged actually committed the underlying offense. (People v. Modiri (2006) 39 Cal.4th 481, 492 & fn. 9, 493.) Most notably, the information selected section 1192.7, subdivision (c)(8), which applies to any felony where great bodily injury was personally inflicted, instead of subdivision (c)(9), which applies to the specific crime charged here – attempted murder. Thus, when read together and in context, the information alleged that Dixon had personally inflicted great bodily injury on Warren, satisfying the pleading requirements of section 12022.53, subdivision (j).
As a result, Dixon’s reliance on People v. Mancebo (2002) 27 Cal.4th 735, is misplaced, because at issue there was the requirements for pleading a gun use enhancement in conjunction with the One-Strike rape law, section 667.61, subdivisions (f) and (i), which mandate that certain circumstances must be pled and proved. (Mancebo, supra, at pp. 738, 745, fn. 5.)
However, the pleading requirements were just barely satisfied and we urge prosecutors to take more care when preparing an information.
Second, the information alleged that Dixon was subject to a sentence enhancement of 25 years to life because a principal fired the shot that injured Warren as part of a crime committed for the benefit of a criminal street gang. (§ 12022.53, subds. (d) & (e)(1)(A).) He was therefore aware from the beginning that he was subject to that enhancement should the jury determine that Mesa and not he had fired the shot that injured Warren. Combined with the allegations of the information as a whole, and the fact that the prosecutor said before trial that his theory of the case would show that Dixon had been the lone shooter, and told the jury during his opening statement that he would ask it to find that Dixon personally fired a gun, causing great bodily injury, we conclude that Dixon received adequate notice of the enhancement for due process purposes.
As a result, we do not address respondent’s contention that any error was waived by the failure to object when the issue was submitted to the jury.
3. Modifications to Abstract of Judgment
The trial court imposed a sentence of life with the possibility of parole for the attempted murder count, with Dixon required to serve 14 years before becoming eligible for parole. Consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancement and 5 years for the section 667 prior conviction, were also imposed, for a combined term of 44 years to life. However, the abstract of judgment states that a term of 30 years to life was imposed. Respondent asks us to correct this error, and Dixon does not challenge that request. We will therefore order the correction.
DISPOSITION
The abstract of judgment is modified to reflect a term of 44 years to life, as follows: life with the possibility of parole for the attempted murder, with Dixon eligible for parole only after serving 14 years, with consecutive terms of 25 to life under section 12022.53, subdivision (d) and 5 years under section 667, subdivision (a)(1). The clerk of the superior court is directed to modify the abstract accordingly and forward a corrected copy to the department of corrections. In all other respects, the judgment is affirmed.
WE CONCUR: BIGELOW, J. O'NEILL, J.
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.