Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. BAF004710, Patrick F. Magers, Judge.
HUFFMAN, J.
A jury convicted Ralph Luis Espinoza of two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); counts 1 & 2), of robbery (§ 211; count 3), of four counts of being an ex-felon in possession of a firearm (§ 12021, subd. (a); counts 4, 5, 6 & 7), and of being an ex-felon in possession of ammunition (§ 12316, subd. (b)(1); count 8). The jury also found true allegations as to all counts, except count 7, that Espinoza committed each offense for the benefit of a criminal street gang (§ 186.22, subd. (b)). As to counts 1, 2 and 3, the jury additionally found that Espinoza had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and had personally and intentionally discharged a firearm (within the meaning of § 12022.5, subd. (a) regarding counts 1 & 2 and § 12022.53, subd. (c) regarding count 3).
All statutory references are to the Penal Code unless otherwise specified.
The trial court subsequently found true that Espinoza had suffered a prior serious felony conviction (§ 667, subd. (a)), a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and two prior prison terms (§ 667.5, subd. (b)). After denying a new trial motion, the court sentenced Espinoza to a total prison term of 60 years, which was comprised of, among other things, consecutive terms for the counts 5 and 6 ex-felon in possession of a firearm convictions and a stayed one-year term for one of the prior prison terms.
The court incorrectly added the terms it orally imposed to find a total of 58 years and 8 months. The court minutes and the abstract of judgment properly show the correct total of the terms imposed as 60 years.
Espinoza appeals, contending there was insufficient evidence to support the jury's finding that the robbery, assaults with a deadly weapon and illegal weapon possession charged in counts 1 through 4 were committed for the benefit of a gang and that the trial court erred in imposing consecutive terms for counts 5 and 6 and in staying rather than striking the one prison prior. The People concede the prior prison enhancement must be stricken. We agree with such concession. Accordingly, we affirm as modified to strike the stayed term for Espinoza's second prior prison term.
In sentencing, the court stayed Espinoza's second one-year prison prior enhancement, which was based upon the same 1996 voluntary manslaughter conviction for which he was also receiving a five-year enhancement under section 667, subdivision (a). Because such prison prior should have been stricken rather than stayed (see People v. Jones (1993) 5 Cal.4th 1142, 1153; People v. Jones (1992) 8 Cal.App.4th 756, 758), the court essentially imposed an unauthorized sentence, which is subject to correction on review (People v. Menius (1994) 25 Cal.App.4th 1290, 1295). We therefore order Espinoza's second prison prior enhancement stricken and the abstract of judgment modified accordingly. (§ 1260.)
FACTUAL AND PROCEDURAL BACKGROUND
On April 23, 2005 at around 2:40 p.m., Beaumont, California Police Officer George Walter pulled over a light brown van containing three people because the front seat male passenger was not wearing a seat belt. Before approaching the van, Walter turned on the video recorder in his police car to record the traffic stop. When Walter saw the male passenger sitting behind the female driver move in a way that caused him concern for his safety, he called for backup, approached the van and spoke at a distance with the driver and the front seat passenger, who was identified as Steven Falcon, about the seat belt violation. When the second officer arrived, Falcon and the backseat passenger, who was determined to be Espinoza, were asked to step out of the van. After conducting a consensual search of the van and finding nothing incriminating, Walter issued Falcon a citation and let the three occupants of the van leave.
At around 8:30 a.m. on April 25, 2005, Donald Atkinson, a patrol officer for the Morongo Indian Reservation, which is east of the cities of Banning and Beaumont in Riverside County, was escorting a school bus in a rural area of the reservation when he saw a Hispanic man frantically waving his hands to get someone's attention. As Atkinson rolled down his window, the man, whom Atkinson noticed had a head wound and fresh blood on his face, turned and pointed down the road, saying, "My friend, my friend, he's been shot." Looking in that direction, Atkinson saw a person lying in the road about 100 yards away. As he drove closer, he saw that the person in the road was also a Hispanic male who was lying in a pool of fresh blood that was coming from a gunshot wound to his right arm. When the other man walked back to where Atkinson and his friend were located, Atkinson had the man take off his shirt and use it to put pressure on his friend's wound while he called 911 on his cell phone to summon the fire department and Riverside County Sheriff's Department.
Before assistance arrived, Atkinson determined that the man with the head wound was named Octavio Navar or Naber and the man with the gunshot wound was named Antonio Luna. Navar told Atkinson in broken English that two Hispanic men with short hair and tattoos in a van picked him and his friend up from an unknown address in Banning, drove out to the reservation and forced them to get out, then hit Navar over the head with an unknown object and shot Luna. Navar thought that both men in the van were in their mid-20s.
When deputies arrived, Atkinson helped them preserve the scene for investigation while the victims were transported to a hospital in Palm Springs, California. At the scene, Riverside Deputy Sheriff George Stanley found, among other things, a nine-millimeter Winchester Luger bullet casing. At the hospital, Riverside Deputy Sheriff Herlinda Valenzuela translated an interview with Luna by another deputy before Luna went into surgery. In response to questions, Luna said the driver of the van who assaulted him was a Hispanic male with numerous tattoos on his neck, head and back, black hair, around 27 years old and who was about 5'8" tall, weighed about 140 pounds and wore a baseball cap and sunglasses. Luna said the passenger in the van was also a Hispanic male, in his early 20s, about 5'11" tall and weighed around 180 pounds. Navar, who was also treated at the hospital with staples to close a head wound, gave the deputies a similar description of the suspects, except in less detail.
Two days later, at around 11:00 a.m., Hemet Police Officer Rene McNish on patrol in a marked police car spotted a man sitting in the driver's seat of a light brown van parked at the Coach Light Motel, a known high crime area in Hemet. As McNish drove by, the driver made eye contact with the police car, made a nervous expression, got out of the van and started walking toward the motel sidewalk. As he did so, McNish contacted dispatch about conducting an occupied vehicle check and approached the driver a few feet from the front of the van. While speaking with the man, who was identified as Espinoza, McNish saw through the van's tinted windows the outline of another person in the van and then noticed a person with tattoos on his arms in the front passenger seat and another person sitting in the middle bench seat of the van. After briefly talking with the men in the van and determining that the front passenger was Jason Rhine and the back passenger was Daniel Salazar, McNish saw two open alcoholic beverage containers in the van. After this discovery, McNish had the men get out of the van, handcuffed them for a violation of the Hemet Municipal Code and had them sit on the sidewalk curb while he called for backup.
Meanwhile, McNish continued to talk with Espinoza, who was not handcuffed, asking him whether he was staying in the motel and if so, what room he was in. When another Hemet police officer arrived to stay with the three men from the van, McNish walked to the room Espinoza had identified as the one in which he was staying. Inside that room, McNish saw two females and a male. As he was entering the room, he heard the backup officer yell, "he's running," and came out of the room to see the other officer pointing toward Espinoza who was running 20 to 30 yards away. McNish then gave chase and caught up with Espinoza after about two blocks and tackled him to the ground. At that time, Espinoza asked what McNish wanted and whether he knew who he was. Espinoza told McNish to look at his "tats," claiming, "I'm Eme," meaning Mexican Mafia, and saying, "If you let me walk, I'll give you a pound," meaning a pound of methamphetamine (meth). McNish refused the offer and arrested Espinoza, as well as Rhine and Salazar.
In a subsequent search of the van, McNish found two loaded firearms, a nine-millimeter semiautomatic white metal over black polymer Smith and Wesson in a black carrying case underneath the middle bench seat of the van and a.38 caliber pistol in a rear cargo space of the van, as well as some nine-millimeter ball ammunition, a camcorder and a hygiene bag with five hypodermic syringes inside.
After the police in Beaumont were informed of Espinoza's arrest, officers there conducted a search of his family residence in Beaumont and the trailers behind his mother's house where he stayed. Among other things, the officers found heroin syringes, a list of police radio frequencies, an antique.50 caliber muzzle loader pistol and a large amount of ammunition for different calibers of firearms, including ammunition for a.38 caliber firearm and a nine-millimeter automatic or semiautomatic weapon. Graffiti was found on the outside of a crate containing additional syringes near one of the trailers.
At around the same time, Stanley, who was following up on the investigation of the shooting on the reservation, contacted the Banning and Beaumont police departments and discovered that a van matching the description of the one used in the shooting had been stopped several days earlier with Espinoza and Falcon as passengers. When Stanley learned of Espinoza's arrest in the same van on April 27, 2005, he contacted the Hemet police regarding the details. When he heard that two guns were recovered from the van, one a nine-millimeter revolver, he requested the firearms for testing. Stanley then put together four six-pack photographic lineups, which included the most recent photo he had of Espinoza, one of Falcon, one of Salazar and one of Rhine. Espinoza was the number 2 photograph in the first six-pack of photos.
When Stanley showed all four six-pack lineups to the victims, Luna stared at number 2 in the first lineup, but said he did not know anybody and could not identify anyone. When Navar saw the lineups he immediately pointed to number 2 in the first lineup, saying "that's him." Navar then signed and dated a photographic admonishment form as directed by Stanley. Neither victim identified any other person in the lineups as being in the van the day they were injured and left on the reservation. It was later determined that the ammunition casing found at the reservation on April 25, 2005, was fired from the nine-millimeter gun found in the van on April 27, 2005 and that some of the ammunition found at Espinoza's residence was Winchester nine-millimeter and would fit the gun.
Espinoza was subsequently charged in three separate criminal complaints for crimes arising out of the shooting on April 25, 2005, the search of the van on April 27, 2005, and the search of his residence that same date. After an initial dismissal and a refiling with Espinoza being bound over for trial on the April 25, 2005 crimes, the trial court granted the prosecution's motion to consolidate this case with the two April 27, 2005 cases alleging weapons charges. In addition to the above evidence being presented in the prosecution case at trial, the prosecutor presented the testimony of the victims and two gang experts.
The trial court denied the request to consolidate these cases with a pending in-custody attempted murder case.
Luna, with the assistance of an interpreter, testified that on April 25, 2005, as he and his friend Navar were walking from Navar's house to the Rio Ranch Market in Banning, California, a brown Ford Aerostar van with two small Hispanic men in their mid-20s pulled up and Navar started talking in English to the men, whom he appeared to know "somewhat." Luna identified a photograph of the van that Officer Walter had taken during the traffic stop on April 23, 2005 as the van involved in the April 25, 2005 incident. Luna did not know the men and claimed he did not understand the conversation because he only comprehends about 10 percent of English. He did not believe Navar was attempting to buy drugs from the men in the van because Navar had already had some meth and only had five or six dollars in his possession. Luna got in the van with Navar at his request, with Navar sitting behind the passenger and Luna behind the driver, who then drove to a rural area on the Indian reservation and stopped. Navar looked nervous as the driver took out a gun and hit him in the forehead injuring him. When Navar then opened the van door and ran, Luna followed. As they were running, Luna turned around to look at the van and was shot by the driver in his right arm. Luna and Navar kept running as the van drove away until Luna fell to the ground from heavy bleeding and asked Navar to get help. That is when Navar, who was also bleeding from his forehead, waved down the security patrol escorting a passing school bus.
Luna remembered speaking in Spanish with a female police officer in the hospital before his surgery and recalled seeing some tattoos on the men in the van, but could not see clearly the neck or face of the driver because of the hat and sweater with a hood that he was wearing. He did not identify anyone in the photographic lineups he was shown because he was "not sure." He believed that Espinoza in court looked similar to the person who shot him, but thought the shooter was darker complected and thinner than Espinoza. He also believed that the person who shot him was similar in build to the person shown getting out of the van in a video that was played for the jury from Walter's stop of the van on April 23, 2005.
Luna further testified that after he and Navar had given their respective statements to the police on April 27, 2005, but before he testified in court the first time, Navar told him that the men in the van had come to his house and had threatened to kill both him and Luna, which frightened him. Luna admitted that he had been convicted of robbery in Mexico and had served three months in jail for that offense. Luna agreed that the man who shot him had black hair that was "kind of long." He also conceded that both he and Navar were meth users and that he was under the influence of meth at the time he got into the van.
Because Navar was unavailable at the time of trial, his preliminary hearing testimony was read into the record. The testimony related that Navar was walking to a store in Banning when a brown van pulled up and Navar asked the two people in the van if they knew where to buy some drugs. When they told him "yes," Navar and Luna got into the van, with Navar sitting behind the passenger and Luna behind the driver. Navar denied seeing the driver of the van in court, saying he did not know who he was and that it was the first time he had seen him. Navar said he gave the passenger $50 for $30 worth of drugs, but never got any drugs because after they drove to a street where they were to get the drugs, they drove to another location because they said there were police in the area. At the other location, the driver hit him in the head with a gun. He ran from the van bleeding from his head. Navar said he then saw the driver, whom he could not identify in court, get out of the van and fire the gun. Navar got down on the ground and when he looked over he saw that Luna had turned and fallen, saying he had been hit. Navar basically claimed he did not remember much of the incident after being hit in the head. He received four or five staples to close the wound to his head.
With regard to the shooter, Navar remembered an interview at his house with Stanley where he was asked to identify the shooter from some pictures, saying that Stanley told him what number and he then picked the person that Stanley indicated. Stanley was recalled to the stand to read a portion of his own preliminary hearing testimony which reiterated that Navar had picked out number 2, Espinoza, from the first photo lineup, as the driver of the van and the shooter. Stanley had earlier conceded on cross-examination that the photograph of Espinoza included in the lineup had not shown his prominent facial tattoo over his left eye saying "Gangster," which was clearly visible during the April 23, 2005 stop of the van and at the time of his arrest.
Steven Nieves, a Riverside County District Attorney's investigator, who had previously been an officer for the Beaumont and Banning Police Departments, testified as a gang expert specifically regarding the primary Hispanic gangs in the Beaumont and Banning areas. Among those, he described the history of the Southside Beaumont gang, which was one of the dominant generational Hispanic gangs in the area, whose founding members included Espinoza's family, and its membership fluctuated with at least 15 members in 2005 who would use the letters "SSB" and the number 13, which represented the letter "M" to symbolize the gang, showing its association with the Mexican Mafia prison gang. The Southside Beaumont gang was also referred to as Southside, Fourth Street, IE (Inland Empire), "BMT," and Bomonte, and had the primary activities of selling drugs, robbery, burglary, drive-by shootings and murder. Nieves noted that the Southside Beaumont gang had an ongoing feud with a gang called "Northside Beaumont," which included stabbings and shootings and listed various predicate offenses committed by known Southside Beaumont gang members to establish a pattern of criminal gang activity, which qualified the Southside Beaumont as a criminal street gang. It was Nieves's experience that Southside Beaumont gang members shared vehicles and weapons, often passing them amongst fellow gang members.
Nieves opined that Falcon and Salazar were members of the Southside Beaumont gang based on Falcon's admission to law enforcement and his tattoos and Salazar's tattoo on his chest that represented the gang. Nieves opined that Rhine was a member of the Eastside Banning Sapo based on the "ESBS" tattoo on his neck representing the gang and a tattoo on his cheek showing allegiance to the Mexican Mafia. The members of the Eastside Banning Sapo and Southside Beaumont were allies or rivals at various times depending upon members moving back and forth between the two areas and the intermingling of their families through marriages over the years. Nieves did not know whether Falcon was a validated member of the Mexican Mafia, but learned from prison documents that Rhine was an associate.
It was Nieves's opinion that Espinoza was a member of the Southside Beaumont gang based on the fact he was from one of the founding and most entrenched families of the gang, his known associations with other gang members, including Falcon and Salazar, and his numerous prominent tattoos representing the gang on his back, stomach, head and face, including Fourth Street on his temple, which increased over time showing his ongoing membership in the gang.
On cross-examination, Nieves clarified that the Southside Beaumont gang was known as a highly mobile gang and its members had access to a lot of vehicles which they would share, especially in the predominant families.
Dave Hankins, another investigator with the Riverside County District Attorney's Office, who was assigned to the regional county gang task force in the San Jacinto area, testified as a gang expert in general and specifically about the role of a gun in a gang. Hankins also described the importance of turf to a criminal street gang, how a gang maintains its turf, and how a gang member earns respect and status based on acts of violence and gun use. Generally, a gang member's respect and power level goes up when he uses a gun to commit an act of violence, be it retaliation against a rival gang member or to defend a fellow gang member. A gang member who uses a gun to generate money for the gang by committing robberies and other crimes also gains power and respect with the most violent gang members being the ones who are most respected.
Hankins agreed with Nieves's conclusion that Southside Beaumont is a criminal street gang and that Espinoza was a member of that gang, noting his moniker was "Solo" and Rhine's moniker was "Diablo." Hankins also noted that the number of gang tattoos on Espinoza's face showed his high level in the gang, opining that the more prominently displayed a gang tattoo is, the more committed the gang member is to the gang. Hankins was unaware, however, of any information indicating that Espinoza was a member of the Mexican Mafia.
Given a hypothetical based on the driver of the van being a Southside Beaumont gang member and the facts testified to by Luna and Navar regarding the incident on April 25, 2005, Hankins opined the person in the van with the driver was most likely an associate or member of Southside Beaumont and that the acts of hitting Navar with a gun and shooting Luna after he left the van would elevate the driver/shooter's status as a gang member and potentially eliminate witnesses. Hankins based his opinions on the facts that gang members usually travel with other gang members or associates for safety and usually would only commit a criminal act if he believed the person he was with would not report it to the police, but rather tell other members in the gang about the act of violence, which would increase his status in the gang.
Hankins further opined that the robbery and assaults on April 25, 2005 were committed for the benefit of the gang because the initial sale of the drugs took place in Banning, a city in the area "claimed" by the gang, the person selling the drugs was willing to use a gun to assault and shoot an unarmed person over being asked for monetary change, and the carrying and using of the gun by the gang member increased the fear and respect for the gang by people knowing he was willing to hurt them to profit or defend the gang. Hankins additionally opined that a gang member who is carrying a gun that he is prohibited from carrying by his criminal record benefits the gang because it shows that the gang member is committed to defending the gang by an act of violence.
When next given a hypothetical based on the fact of possession of the guns in the brown van on April 27, 2005, two days after the shooting, Hankins opined that those crimes were also for the benefit of the gang because gun possession shows commitment to the gang and a willingness to defend the gang. Similarly, Hankins believed that Espinoza's possession of ammunition in and near his residence and trailer was for the benefit of a gang because it promoted the ability to defend the gang, its selling of drugs and its turf.
Although Hankins conceded on cross-examination that mere membership in a gang is not a crime and that a gang member could commit an act for personal gain and not for the gang, he noted that whether a crime benefits the gang is determined on a case by case basis depending on the facts. Hankins also agreed that it was common for gang members to share not only guns, but also vehicles. When asked what benefit was received by the Southside Beaumont gang as a result of the firearm assaults on April 25, 2005, Hankins replied that the status of the driver who used the firearm increased because "it's well known when gang members commit crimes, they don't keep it a secret between themselves. They are very boisterous. And what happens is it bolsters the individual's respect to the point where not only do people respect him, they fear him thinking, hey, I don't want to be a snitch. I know I got to put in work to get to his equal advanced stature, and those things... benefit the gang...." Hankins also believed that the shooting would financially benefit the gang's drug sales because other people would not "deal" drugs in the gang's territory, people would buy only from the gang, and customers would not complain if short changed because those people who use would buy drugs from the people who can get drugs to them.
It was stipulated that Espinoza had previously been convicted of a felony for purposes of proving his status as an ex-felon.
The Defense
Rhine testified in the defense case, admitting he was a member of Eastside Banning Sapo and Espinoza's and Salazar's cousin, and stating that after his release from prison on April 25, 2005, he saw the brown van being driven around and decided to take it. Rhine explained that everyone had access to the van, it was a neighborhood van, a pass around van by Mexican gang members and it was a common thing to just take it. When he took the van from a park in Banning on April 26, 2005, he used a knife to start it and saw the guns in the van at that time. He just drove around drinking, eventually picking up Salazar and the two continued to drink and drive around. When Rhine received a call from Espinoza to pick him up from the Coach Light Motel in Hemet on the morning of April 27, 2005, Rhine drove there with Salazar, parked and called Espinoza to come outside so they could leave. As Espinoza was walking toward the van, Rhine saw a police car drive up behind the van and he jumped to the passenger seat because he did not have a driver's license. The police officer began talking with Espinoza and ordered Rhine and Salazar out of the van. Rhine said that the nine-millimeter and.38 caliber guns found in the van belonged to him and that he was arrested for possession of those two guns. Rhine subsequently pled guilty to charges of illegal possession as an ex-felon of those guns and served 32 months in prison for such possession. He was not charged with possessing the guns for the benefit of a gang. Rhine denied ever seeing Espinoza in the van on April 27, 2005, and denied ever seeing him in possession of the guns in the van.
On cross-examination, Rhine denied the guns belonged to him, saying the first time he saw them was the day he got into the van. Even though the van was not his, Rhine said he pled guilty to possessing the guns because they were in the van when he took it. He explained that he could say the guns were his, because he had pled guilty and had done time for them. Although he had a tattoo associated with membership in the Mexican Mafia on his face, Rhine denied knowing what the tattoo meant or that he was a member of the Mexican Mafia. He also denied that Espinoza was a Mexican Mafia member or associate, or even knowing that he was a member of the Southside Beaumont gang. Rhine agreed it was an odd coincidence that Espinoza had been driving around in the same van several days before the April 27, 2005 events.
Also in the defense case, the parties stipulated that a blood sample was drawn from Navar on April 25, 2005, and a toxicologist testified that the sample tested positive for amphetamine and cannabinoids. The parties also stipulated that there are three pending investigations in Mexico against Navar relating to two charges of robbery and one of robbery with violence in 2007.
Espinoza's defense as to the events on April 25, 2005 was essentially mistaken identity. In closing, his counsel argued with regard to such events that there was insufficient circumstantial evidence of identity to prove that Espinoza was the person who was driving the van that day and who had assaulted Navar and Luna. Counsel argued that given what is known of the gang culture regarding the open use of the van and any gun within it by all members and associates of the gang, a reasonable interpretation of the evidence was that someone other than Espinoza was in the van on April 25, 2005, even though he had been in the van on April 23, 2005 and near it on April 27, 2005. As for the gang enhancements alleged along with the four crimes charged arising out of the incident on April 25, 2005, defense counsel argued there was no evidence to show those crimes were committed to benefit the Southside Beaumont gang even if the gang were determined to be a criminal street gang as defined by the law. Counsel claimed there was no way the gang could be benefitted by the crimes because there was no evidence to show that Navar and Luna knew the people in the van were gang members because they did not testify about any gang slogans being yelled, about any gang signs being given, about any graffiti being involved or about any tattoo on the men in the van being identified with a specific gang. Counsel also pointed out that the crimes did not occur on gang turf and argued they could have been committed for a gang member's personal reasons. The jury determined otherwise, finding Espinoza guilty of the crimes and allegations as charged.
DISCUSSION
I SUFFICIENT EVIDENCE SUPPORTS COUNTS 1-4 GANG ENHANCEMENTS
Espinoza contends the evidence was insufficient to support the jury's findings that he committed the counts 1 through 4 offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b), which provides for enhanced punishment for "any 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...." He specifically contends that other than his status as a gang member, there was insufficient evidence at trial "of any gang indicia" upon which the gang experts could opine that the assaults, robbery and possession of a gun in counts 1 through 4 were committed for the benefit of a gang. He argues, as his counsel did below, that there was no indication his coperpetrator in the van was a gang member, no gang signals or mention of his gang before, during or after the crimes against Navar and Luna and, although he met up with the victims in his gang territory, the actual crimes were not committed on gang turf. Relying on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), Espinoza further argues that gang expert Hankins's opinion that the crimes were committed for the benefit of the Southside Beaumont gang was improper and not supported by the evidence. Espinoza therefore claims the gang enhancements to counts 1 through 4 should be reversed. We disagree.
Espinoza points out that our high court recently granted review concerning the sufficiency of the evidence to prove that the crimes in that case were committed for the benefit of a gang based on gang membership and expert gang testimony. (People v. Albillar (2008) 162 Cal.App.4th 935 (review granted Aug. 13, 2008, S163905.)
In reviewing a challenge to the sufficiency of evidence, we " 'consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment [or finding]. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' [Citation.] We consider whether a rational trier of fact could have found the essential elements of the crime [or allegation] beyond a reasonable doubt. [Citations.]" (People v. Romero (2006) 140 Cal.App.4th 15, 18.) This same standard applies when a conviction or finding rests primarily on circumstantial evidence (People v. Perez (1992) 2 Cal.4th 1117, 1124), as well as to gang enhancement findings (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) In making this determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
As relevant to Espinoza's assertion of insufficiency of the evidence, in order to prove the additional allegation that he committed counts 1 through 4 for the benefit of, at the direction of, or in association with a criminal street gang, the prosecution was required to prove beyond a reasonable doubt that "1. The defendant committed the crime (for the benefit of[,]/at the direction of[,]/[or] in association with) a criminal street gang; [¶] AND [¶] 2. The defendant intended to assist, further, or promote criminal conduct by gang members." (CALCRIM No. 1401) To prove these elements, the prosecution may, as in this case, present expert testimony on the culture, habits and psychology of a criminal street gang. (People v. Gardeley (1996) 14 Cal.4th 605, 617-620.) Such permissible expert testimony beyond the common experience of the trier of fact includes, among other things, the size, composition or existence of the gang, the gang's turf or territory, an individual defendant's membership in or association with the gang, the primary activities of the gang, whether or how a crime was committed to benefit or promote the gang, and motivation for a particular crime, i.e., retaliation or intimidation by the gang. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1514 (Garcia).) "An expert, however, may not testify that an individual had specific knowledge or possessed a specific intent. [Citation.]" (Id. at p. 1513.) Nor may the expert testimony provide the only evidence offered by the prosecution to establish the elements of the charged crime or allegation. (Killebrew, supra, 103 Cal.App.4th at p. 658.)
In this case, Espinoza does not claim he was not the driver of the light brown van on April 25, 2005, who robbed Navar and assaulted Navar and Luna with a gun he possessed as an ex-felon or challenge the evidence to support those crimes, the enhancement element that Southside Beaumont was a criminal street gang, or his gang membership. Nor can he object to the admission of the expert testimony regarding such gang or gangs in general for the first time on appeal. Contrary to his claim that the gang allegations for counts 1 through 4 were premised wholly upon his gang membership and the improper expert testimony of Hankins, there was more than sufficient circumstantial evidence independent of his mere gang membership and Hankin's testimony from which a jury could reasonably infer that the crimes charged in counts 1 through 4 were committed for the benefit of the Southside Beaumont criminal street gang.
Here, Espinoza's defense counsel brought out through Nieves's cross-examination and the presentation of Rhine's testimony in the defense case, the crucial facts that Espinoza's facial tattoos clearly revealed he was a prominent member of the Southside Beaumont gang, that the light brown van, involved in separate police contacts or incidents on April 23, 25 and 27, 2005, was essentially a "gang" vehicle used by any of the Southside Beaumont gang members or associates, that the gang was historically mobile, travelling in and around the Banning/Beaumont and Hemet areas, and that usually members of the prominent generational Hispanic gang families, including the Espinoza family, used the van. From such evidence, a jury could reasonably infer that because Espinoza was driving the "gang" van along with another tattooed individual when he picked up Navar and Luna in gang territory for the purpose of selling drugs to Navar, which was a primary activity of the Southside Beaumont gang, and had been in the van with other known gang members on April 23 and again on April 27, that the other individual in the van with Espinoza on April 25, 2005 was also a member or associate of the gang.
That neither Navar or Luna testified about any gang slogans being yelled, gang signs being made or mentioned that the men in the van were gang members is not dispositive as Espinoza suggests. The lack of such evidence was merely one factor for the jury to consider along with the facts that Luna initially testified that Navar appeared to know the men in the van when it picked them up in gang territory, that Espinoza had prominent facial tattoos that identified him as a Fourth Street gangster, and that Luna was scared because Navar had told him after their police interviews and before the preliminary hearing that the men from the van had threatened to kill them both. From this evidence, the jury could have reasonably inferred that both victims were afraid to identify Espinoza or the other individual in the van as gang members and the perpetrators of the crimes and that they were essentially lying on this point. These inferences coupled with, not only the expert gang testimony from Nieves as well as from Hankins, but also the evidence that the same nine-millimeter gun Espinoza used to hit Navar and shoot Luna on April 25, 2005 had been found in Espinoza's possession on April 27, 2005 in the van when he was in the company of another Southside Beaumont gang member sufficiently supports the jury's determination that the crimes in counts 1 through 4 were committed for the benefit of the Southside Beaumont gang.
Espinoza's reliance on Killebrew, supra, 103 Cal.App.4th 644 and Frank S., supra, 141 Cal.App.4th 1192, to argue otherwise is unfounded. As noted above, the gang enhancement finding was not based solely on Espinoza's gang membership and Hankin's expert gang opinions for support, and neither expert testified as to Espinoza's specific intent in assaulting and robbing the victims or of possessing the nine-millimeter firearm on April 25, 2005. Instead, in response to hypothetical questions, Hankins testified the crimes, under similar circumstances as testified to by the victims and in light of the specific gang culture and habit of the Southside Beaumont gang as testified about by Nieves, would be committed to benefit that criminal street gang. (See Garcia, supra, 153 Cal.App.4th at pp. 1512-1513.) Thus, based on the totality of the circumstantial evidence as well as the expert testimony discussed above, there was more than sufficient evidence to support the jury's true findings as to the counts 1 through 4 gang enhancements.
Interestingly, were we to base our decision only on the People's briefing in this case, which does not mention any of the evidence elicited by the defense that supports our determination, and which is proper to consider for a sufficiency of the evidence challenge, we may have reached a different outcome.
II SENTENCES FOR BOTH COUNTS 5 AND 6 PROPER
Espinoza was found guilty in count 5 with being an ex-felon in possession of a firearm under section 12021, subdivision (a)(1) with regard to the nine-millimeter handgun found in the van on April 27, 2005, and in count 6 with being an ex-felon in possession of a firearm under the same section with regard to the.38 caliber revolver found during the same search of the van on that day. At sentencing, the trial court imposed additional consecutive terms of 16 months for each conviction. Espinoza basically contends the court violated section 654's proscription against multiple punishment when it did not stay the sentence under count 6 because the two weapons involved in counts 5 and 6 were found at the same time and place and his possession of the firearms constituted one indivisible transaction. We conclude the court properly imposed sentence on both counts.
Because the failure of a trial court to properly stay a sentence under section 654 constitutes an unauthorized sentence that may reviewed and corrected on appeal (People v. Hester (2000) 22 Cal.4th 290, 295), we address Espinoza's assertion of a section 654 violation even though he did not object below to the imposition of sentence on count 6 on such ground.
As the parties note, the issue of whether a defendant is properly sentenced on multiple counts of being a felon in possession of a firearm where he was discovered in a closet with a cache of weapons is currently pending before our high court in People v. Correa (2008) 161 Cal.App.4th 980 (review granted July 9, 2008, S163273).
Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The purpose of such multiple punishment proscription is to ensure that a defendant's punishment is commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 551 (Perez).) Further, "it is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor." (Perez, supra, at p. 551.) Generally, "[a] trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
As relevant here, section 12021, subdivision (a)(1) states, "Any person who has been convicted of a felony... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." Such section addresses the danger of permitting "ex-felons to possess concealable firearms, and the 'risk to public safety derives from the type of person involved.' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1146.)
In People v. Kirk (1989) 211 Cal.App.3d 58 (Kirk), the court found that the use of the words "any firearm" was ambiguous in a former version of section 12020, subdivision (a) and concluded that the defendant there could not be convicted and punished for his simultaneous possession of two sawed-off shotguns. (Id. at pp. 62-66.) In doing so, the court in Kirk did not expressly address whether section 654 would bar punishment for more than one illegal possession of a firearm at the same time and place.
However, in response to the ruling in Kirk, supra, 211 Cal.App.3d 58, the Legislature in 1994 amended section 12001 to add subdivision (k), which provides in pertinent part: "For purposes of Section[] 12021,... notwithstanding the fact that the term 'any firearm' may be used in [that section], each firearm... shall constitute a distinct and separate offense under [that section]." The Legislature specifically stated:
"The amendments to Section 12001 of the Penal Code made by this act adding subdivision[] (k)... thereto are intended to overrule the holding in [Kirk, supra], 211 Cal.App.3d 58, insofar as that decision held that the use of the term 'any' in a weapons statute means that multiple weapons possessed at the same time constitutes the same violation. It is the further intent of the Legislature in enacting this act that where multiple weapons are made, imported, transferred, received, or possessed, each weapon shall constitute a separate and distinct violation." (Historical and Statutory Notes, 51D West's Ann. Pen. Code (2009 ed.) foll. § 12001, p. 10.)
In light of the statutory abrogation of the holding in Kirk, supra, 211 Cal.App.3d 58, regarding the preclusion of multiple convictions for simultaneous firearm possession, Espinoza's reliance on People v. Puppilo (1929) 100 Cal.App. 559, which was a basis for Kirk's holding, is misplaced. Like Kirk, Puppilo did not address the issue of whether section 654 bars punishment for more than one offense of illegal firearm possession and its holding has essentially been disapproved by section 12001, subdivision (k).
The trial court's imposition in this case of separate sentences for each of the weapons unlawfully possessed by Espinoza on April 27, 2005 is fully consistent with the Legislature's expressed intent that a felon's possession of each firearm be deemed a distinctly punishable offense. Such also comports with the principal of imposing punishment commensurate with a defendant's culpability. (Perez, supra, 23 Cal.3d at p. 551.) Clearly, an ex-felon who possesses more than one firearm is more culpable than an ex-felon who only possesses one firearm. Espinoza's culpability as an ex-felon increased with each additional weapon in his possession. (Id. at pp. 550-551.)
Contrary to Espinoza's assertion that there was no evidence he had independent objectives for the two guns he possessed on April 27, 2005, and had no objective at all regarding the.38 caliber gun found in the van, our review shows that the court's implied finding Espinoza harbored separate intents and objectives for possessing each firearm is supported by the record. The evidence revealed that the guns found in the van on the same date were of different makes and calibers and required separate types of ammunition for their use. These facts alone indicated that Espinoza harbored separate objectives for possessing each firearm. The guns were also not found together in the same spot in the van, but rather in different locations, with the nine-millimeter firearm being found inside a case underneath the middle bench seat inside the van and the.38 caliber handgun being found in the rear cargo space. Espinoza had actually possessed and used the nine-millimeter gun two days earlier to commit acts of violence against Luna and Navar. From such evidence the court could readily infer that Espinoza's intent and objective in possessing that same gun on April 27, 2005 was to commit additional violent crimes as he had in the past and that his possession of the.38 caliber gun at a different location in the van was due to a separate intent and objective to have an additional concealed weapon to access should he need to do so to commit additional violent crimes or to defend himself or his gang.
In sum, we conclude the court properly punished Espinoza for both counts 5 and 6 for his possession of two different guns as an ex-felon on April 27, 2005.
DISPOSITION
Espinoza's second prison prior enhancement is stricken rather than stayed. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., McDONALD, J.