Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA087921 John T. Doyle, Judge.
Murray A. Rosenberg, 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, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
A jury convicted Hugo Estuardo (appellant) of conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)) (count 1); unlawful driving or taking of a vehicle (Veh. Code, §10851, subd. (a)) (count 3); carrying an unregistered, loaded firearm (§ 12031, subd. (a)(1) (count 4); and conspiracy to commit an assault with a semiautomatic firearm (§ 182, subd. (a)(1)) (count 5). The jury found that a principal was armed in each count within the meaning of section 12022, subdivision (a)(1) and that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to 25 years to life in count 1 with a minimum of 15 years before parole eligibility due to the true finding on the gang allegation. The trial court imposed the midterm of two years in count 3 and three years for the gang enhancement. The trial court imposed the midterm of two years in count 4 and three years for the gang enhancement. In count 5, the trial court imposed the midterm of three years and 10 years for the gang enhancement. The sentences in counts 3, 4, and 5 were stayed pursuant to section 654. The principal-armed enhancement was stricken in each count.
Appellant appeals on the grounds that: (1) there was insufficient evidence to support the convictions in counts 1 and 5; (2) there was insufficient evidence to support the true findings on the gang allegations; (3) the sentences in counts 4 and 5 and the term attributable to the gang allegation in count 5 are unlawful; and (4) the sentence on the gang allegation in count 5 is unlawful.
Respondent contends the trial court erred in the number and dollar amount of court security fees it imposed and in imposing a criminal conviction assessment.
FACTS
Prosecution Evidence
On November 30, 2006, at approximately 9:15 p.m., Deputy Clarence Williams of the Los Angeles County Sheriff’s Department was patrolling with his partner, Deputy Jose Salgado, when they passed a silver Toyota Camry. A check of the Camry’s license plate revealed it was a stolen car. The deputies stopped the Camry. Jose Carrillo was the driver, and appellant was the front seat passenger. Deputy Williams did not believe Carrillo or appellant appeared scared, and neither of them asked for assistance.
Appellant was tried with Carrillo, and each defendant had a separate jury. Carrillo is not a party to this appeal, and those portions of the testimony not heard by appellant’s jury are not included in this statement of facts.
When backup arrived, the deputies ordered Carrillo and appellant from the car, and Deputy Salgado conducted an inventory search. He saw that the ignition key was shaved. Under the front passenger seat, he found a.40-caliber Smith and Wesson pistol with a 10-round magazine. There were nine rounds in the magazine and one in the chamber. Deputy Salgado found a pair of dark knit gloves in the front passenger area, and Deputy Williams later found another pair. Three of the four gloves were inside out. There was also a cell phone inside the car. Appellant denied knowing that the gun was in the car and that the car was stolen. A check of the serial number on the pistol revealed that neither appellant nor Carrillo was the registered owner.
Carrillo lied to Deputy Williams and said he had no tattoos. The deputy later discovered that Carrillo had the word “south” tattooed on one arm, and the word “side” on the other. He also had the numbers “7-0” tattooed on his back. Deputy Williams believed this was a reference to the Compton Varrio 70 gang, and he knew that many Hispanic gangs identify themselves as south siders.
At approximately 9:30 p.m., Detective Gina Cabrera and her partner, Detective Richard Sanchez, arrived at the location of the stop to assist Deputies Salgado and Williams. Detectives Cabrera and Sanchez were gang investigators. Detective Cabrera was familiar with the Compton Varrio 70 gang. Detective Cabrera learned about the evidence collected—the key, gun, and gloves—and spoke with appellant at the scene. Appellant and Carrillo were taken to the police station. Detectives Cabrera and Sanchez conducted an interview with appellant that was not recorded. Appellant denied knowledge of the stolen car and the gun. He claimed that he was on his way to get tacos.
Detectives Cabrera and Sanchez also interviewed Carrillo, whose statement was not recorded. The two detectives then confronted appellant with the information Carrillo had divulged. Appellant gave another statement that was not recorded. No police officer or detective used force against appellant or Carrillo, and appellant exhibited no fear or concern during his interviews. He seemed to be relaxed.
On December 1, 2006, Detective Cabrera interviewed appellant at the men’s central jail and recorded his statement. She was accompanied by Detective Sanchez and Homicide Detective Brian Steinwand. Detective Sanchez, a certified bilingual officer, conducted most of the interview in Spanish. A certified translation of the interview was read to the jury.
During the interview, appellant told the detectives that he had been living with two cousins who were not involved with gangs. Appellant could not live with them anymore because he could not afford to pay the rent. Appellant ran into Ramon Camarena, who was also called “Yayo” and “Trigger” on the Monday before the silver Camry was stopped, which occurred on Thursday. Camarena’s father lived with or was married to appellant’s mother. Camarena approached appellant and asked, “Where are you from?” Appellant said he did not speak English, and Camarena spoke to him in Spanish. Appellant said he was from “nowhere” and that he had no place to live. Camarena and appellant did not recognize each other. Camarena took appellant to his home, where appellant showered and changed. When appellant heard Camarena’s mother call him “Ramon, ” appellant realized that Camarena was the son of appellant’s stepfather. Appellant told Camarena who he was, and Camarena invited appellant to live with him. Appellant described Camarena’s tattoo that read “C-V 70’s.”
On Thursday morning, a friend of Camarena’s came to pick him up in a black Camry. Camarena told appellant to come along, and they went to pick up two more of Camarena’s friends. All five of them then drove around Compton Boulevard and Harris Avenue “where there are only Blacks.” One of Camarena’s friends said to appellant, “Hey, if we’re going to jump you into hood, you’re going to have to kill somebody.” They passed by three Black men near a barbershop. Camarena told appellant that appellant was “not working at all, ” and “it’s all free.” Camarena told appellant he “had to kill” a Black guy from “the other gang because we don’t want them in our neighborhood.” Camarena said that if appellant wanted to become “seven 0’s” he would have to kill one of these guys, “then you can live in my house for free, food for free, you don’t have to worry about anything because... I’m going to take care of you.” Appellant got out of the car after Camarena handed him the gun that was found during the traffic stop. Camarena had loaded the gun for appellant. Appellant went towards the barbershop. He was not “able to shoot at them” because “[t]hey went into [] the shop right away.”
Appellant went back to Camarena and his friends and told them he had been unable to shoot because the men went inside the shop. Appellant was afraid. He told the detectives that he had not fired because he had never done anything like that and did not want to do it, and he had lied when he said the men had gone inside. Appellant did not want to join the gang but did not want to tell Camarena because appellant did not have a place to stay.
Camarena said they would come back to the area at nighttime. After leaving the scene of the barbershop, they drove to a few other places, and eventually they dropped appellant at Camarena’s house. Appellant gave the gun back to Camarena. At approximately 8:40 p.m., Camarena returned home when appellant was in bed watching a soccer game. Camarena turned the TV off and told appellant to follow him. Camarena’s friends were waiting outside. Appellant sat in the rear middle seat of the black Camry, and Camarena told him to put on gloves. Camarena said, “Today you’re going to do what I told you. We have to kill somebody, man.” Everyone in the black Camry had gloves on. They drove to a house on San Mateo Street, where appellant got into the passenger seat of the silver Camry. Camarena and the others gave the car key to Carrillo and told him to drive. Camarena gave appellant the gun and said, “[Y]ou’re going to have to kill someone to be in the gang.”
Camarena told appellant that he and the others would follow the silver Camry as it drove. They would drive around looking for a target, and Camarena would point out the target to appellant and Carrillo. Appellant had to shoot and not miss and then run and get into Camarena’s car. Then they would all leave. They drove around the area for approximately a half hour looking for “the Black guys.” They drove by Leuders Park on Bullis Road because a Black gang hung out there. It was not until the traffic stop occurred that appellant found out that the silver Camry was stolen. Carrillo told appellant to take off the gloves as they pulled into the driveway where the police approached them. Appellant said that the car Camarena was in kept moving.
Appellant admitted he had the gun in the side door compartment and that he hid it when Carrillo told him to do so and to take off the gloves. Appellant told the detectives that Camarena had introduced him to Carrillo the night of the traffic stop. Detective Sanchez was aware that the areas where appellant said they were searching for Black males were areas claimed by Piru gangs, which were Blood gangs and the Compton Varrio 70’s enemy.
When asked why he did not leave Camarena’s home, knowing what Camarena and the others wanted him to do, appellant replied that they did not tell him they were coming back to get him. Appellant went out with his girlfriend during the day and returned to Camarena’s home around 6:00 p.m. He told himself they were not coming back and decided to watch the game. He could leave, but he had nowhere to go. Appellant told his girlfriend everything except about the gun. He told her they were going to kill someone, that they had taken him with them, and that they stole a car. She told appellant to get out of the situation.
As part of his investigation in the instant case, Detective Steinwand arranged for appellant and Camarena to be placed together on a bench. Detectives had placed recorders around the bench to record any conversation they had. Their December 10, 2006 conversation was recorded while they waited on the bench under the pretense that they were going to have photographs taken of their tattoos. The conversation was in Spanish, and Detective Steinwand had a certified translation prepared. The translated conversation, 21 pages in length, was read to the jury.
Appellant did not have any tattoos.
After Camarena was seated next to appellant, Camarena asked him why he had given Camarena’s name. Appellant responded that he had not done so. Camarena asked appellant what he had told “them, ” and appellant replied that he had told them where Camarena, who was “just [his] friend, ” lived. Camarena then asked if appellant had told the police that he and Camarena “were on some kind of deal” or if he had given names. Appellant responded, “Why would I tell them? Why?” Camarena asked, “Then why were they looking for me?” Appellant said he did not know. Appellant told Camarena that he had not told “them” anything and asked why the “other guy” had not been brought out with them and had not been in court with appellant.
Camarena told appellant to say that appellant was staying with his girlfriend and not to get Camarena involved. He asked appellant, “What did you tell them about me for, fool?” Appellant repeated that he had not done so. Appellant said they only had him on stolen car charges. He did not know what the other guy said. Camarena asked appellant if the police had the gun, and appellant answered that he did not know. Appellant also told Camarena that he had told police, “They lied to me that we were going to eat tacos.” He told Camarena that appellant’s mother had been called right away and that she had said appellant was living with his cousins or a friend in Compton around Harris Avenue. When the police had insisted on knowing appellant’s address, appellant told police he lived with Camarena’s mom but not with Camarena. He said he never talked to Camarena. Appellant did not know what the other guy said, but the police did not want to believe appellant. Appellant also told Camarena that he had said he did not know anything about the gun. When appellant asked Camarena how many charges he had, Camarena told appellant that he had not been “busted for that stuff.”
Appellant and Camarena continued to talk about what appellant had said, and Camarena told appellant to say that the other guy picked appellant up. Appellant told Camarena that a detective had asked him if he knew “Trigger” and if he lived with him. Appellant told Camarena that he had responded that he rented a room from Camarena’s mother. Camarena told appellant to say he had lied and that he actually lived with his girlfriend. Camarena also told appellant to tell his “girlfriend not to say anything... because the idiot was blabbering... to [his] old man that they were looking for [Camarena].” Camarena demanded to know what appellant had told his girlfriend on the phone. Appellant responded that he told her he had been busted in a stolen car, that there had been a gun inside the car, that appellant had had nothing to do with it, and that he had been “with some Black guys.” Camarena told appellant that appellant’s girlfriend had told Camarena some things, and it did not match what appellant was saying. Appellant repeated that he had not told her or anyone else anything. Camarena said, “... you in order to... bury me; I’m gonna to bury you deeper... everything you say on the phone is being listened to, you idiot, you understand?”
Camarena asked appellant, “Why didn’t you cover up, man?” He also asked, “So did you tell him that I wasn’t in a gang?” Appellant said he had, and Camarena said “don’t lie to me, I know what you told him.” After accusing appellant of “play[ing] dumb, ” Camarena asked him if he was “wired.” Appellant denied it. Later, Camarena said, “You’re not going to be saying anything, fool, because if you say something. [] If you say something. [].”
Camarena then told appellant that they could not make appellant talk and that appellant should get a lawyer and tell them to speak with his lawyer. Appellant asked if they could beat him up, and Camarena said it did not matter. Camarena told appellant to just say he did not know and that “he gave you a lift.” He said, “don’t you put one on him either” and “on nobody, fool.” Camarena did not “want them to think that I’m a snitch.” Finally, Camarena said, “Why didn’t you just tell me that you didn’t want to, and that’s it, fool?” Camarena then said, “You should have told me you didn’t want to. And that’s it. [] Not involve, not involve more people.”
In response to a passing deputy’s question, Camarena said he was from “Barrio seven zero.” The tape was concluded.
In Detective Sanchez’s opinion, Camarena meant to tell the passing deputy that he was a member of the Compton Varrio 70 gang. Detective Sanchez also believed that the conversation between appellant and Camarena was not threatening toward appellant. Detective Sanchez found it difficult to believe that appellant ran into Camarena by chance. In his opinion, appellant needed a place to stay, knew Camarena, and wanted to join the gang. Appellant “had a way out” and “[d]idn’t choose the way out.” Detective Sanchez noted that appellant did not ask him for help or protection at any time.
Detective Steinwand participated in the investigation of the instant case. Detective Steinwand was familiar with Camarena, who was a member of the Compton Varrio 70 gang and had tattoos on his forearms reading “CV” and “70.” Carrillo had similar tattoos as well as a “7-0” on his back. The location where the traffic stop took place was within Compton Varrio 70’s claimed territory. Detective Steinwand was assigned to a task force that had been formed due to a spike in gang and racial violence involving Compton Varrio 70, a largely Hispanic gang, and the African-American Piru gangs.
Detective Peter Hecht was in a homicide unit at the time of trial but had previously been assigned to gang investigations in Compton. He had extensive training and experience in gang investigations, subculture, and crimes. He described the Compton Varrio 70 territory, which included the location of Camarena’s residence. He explained that the location of the traffic stop was claimed by both a Piru gang and the Compton Varrio 70 gang.
According to Detective Hecht, the primary activity of the Compton Varrio 70 gang was to commit crimes, including narcotics sales, weapons possession, armed assaults, robberies, shootings and murders. The rivalry between the Pirus and the Compton Varrio 70 gang began in the late 1990’s and involved murders of rival gang members and their family members. Detective Hecht testified about specific crimes committed by named Compton Varrio 70’s gang members. The detective testified that it was not uncommon for members of a gang to drive around for hours looking for their victims. The detective believed that if a member no longer wanted to be in the gang it was not difficult to leave, since gangs want members who are willing to participate in crimes. There was some peer pressure involved to both join and remain in the gang but an individual could refuse.
Detective Hecht believed that Carrillo was a member of Compton Varrio 70 and was known as “Oso.” The detective did not believe appellant was a member of the gang. Appellant was an associate, which meant someone who “hangs out with them.” Gang members tested associates as potential new members by having them commit or participate in crimes. Gang members did not commit crimes, especially serious ones, with people whom they did not trust. Gang members did not normally cooperate with law enforcement, and if a gang member snitched, he could become a victim of his own gang.
Camarena was a self-admitted member of Compton Varrio 70. He had gang tattoos and was known as “Trigger.” The detective believed Camarena was a “shot caller.” Camarena was arrested for possession of weapons on December 3, 2006. Another gang member named Martin Ornelas was arrested with him. Camarena was convicted of carrying a concealed weapon, and the gang allegation against him was found to be true.
In a hypothetical question based on the facts in the instant case, Detective Hecht was of the opinion that the crime would benefit the reputation of the gang. Individual members gained greater status the more violent they were. This benefits the individual as well as the gang because it intimidates the community, making people fearful and reluctant to cooperate with law enforcement. Even just looking for targets would add status to the individuals because it shows a willingness to “put in work.” In response to another hypothetical question, which included the facts that a non-Compton Varrio 70 gang member got into a stolen car, put on gloves, and had a gun, Detective Hecht stated that he believed these acts would be consistent with an initiation into the gang. It was common to commit crimes in stolen cars because the cars could then be disposed of. Wearing gloves was becoming more frequent in an effort to avoid getting gunshot residue on hands and leaving fingerprints on cars and weapons. Using a caravan of cars was becoming more common, and Compton Varrio 70 was known for doing this. It was a way to get the perpetrators away from the scene as soon as they committed the crime.
Detective Hecht would not characterize appellant and Camarena’s recorded conversation as “threatening” or “overbearing” although there were statements from Camarena that could be interpreted as threats. When Camarena said to appellant “I’m going to bury you, ” it was “intimidating.” Upon redirect examination on this issue, the detective stated that, depending on the inflection used, the conversation could be interpreted differently. Because he did not speak Spanish, he could not comment as to whether Camarena was threatening appellant.
Defense Evidence
Juan Carlos Arreaga had known appellant since Arreaga was 15 years old and appellant was three years old. Arreaga went to school with appellant’s cousins in Guatemala. They lived in the same town for 13 years, until Arreaga moved to the United States. Arreaga saw appellant in the United States for the first time approximately two years before appellant’s arrest. They then saw each other once or twice a week, and he had seen appellant on the day before the arrest. Appellant had been living with his cousins Milton and Gilmar Alvarez in Compton. Appellant did not speak English, but he understood enough to help Arreaga, who worked at a Laundromat. Appellant did not have a reputation for violence or racism, and he treated the Black customers at the Laundromat “fine.” Arreaga believed appellant was peaceful and racially tolerant. Arreaga never saw appellant with gang members, and appellant did not dress like one. Arreaga would not have turned away appellant from Arreaga’s home.
Milton Alvarez, appellant’s cousin, was 10 years older than appellant. Appellant’s mother was Milton’s aunt. Appellant had lived in Milton’s home as a child because appellant’s mother left Guatemala for the United States. Milton considered appellant to be his brother. Appellant had shared a room with Milton and his brother Gilmar for approximately a year and a half. When appellant lost his job about a week before he was arrested, their landlady told Milton that appellant could no longer stay there. Appellant went to work with Arreaga. Milton believed appellant had a reputation for being a peaceful and racially tolerant person. Appellant did not dress like a gang member.
DISCUSSION
I. Sufficiency of the Evidence in Counts 1 and 5
A. Appellant’s Argument
Appellant contends there was insufficient evidence that he intended to enter an agreement with the other participants to kill a person or that he ever intended to kill a person. Likewise, there was insufficient evidence that he intended to enter an agreement with the other participants to commit an assault with a semiautomatic firearm or that he ever intended to commit an assault with a semiautomatic firearm. According to appellant, both the December 1, 2006 interview with detectives and the December 10, 2006 recorded conversation with Camarena made it clear that there was no substantial evidence of his intent to agree to these conspiracies or specific intent to commit the underlying crimes that the conspiracies were formed to commit. Any finding of intent on his part was purely speculative.
B. Relevant Authority
The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.) The court does not limit its review to the evidence favorable to the respondent, but must determine whether there is substantial evidence in light of the whole record. (Id. at p. 577.) To be substantial, evidence must be reasonable, credible, and of solid value. (Id. at p. 576.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“The standard of review is the same in cases in which the People rely mainly on circumstantial evidence.” (People v. Stanley (1995) 10 Cal.4th 764, 792.) Given this court’s limited role on appeal, appellant bears an enormous burden in claiming there was insufficient evidence to sustain the true finding. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Section 182 provides for criminal punishment where “two or more persons conspire... [t]o commit any crime.” To establish guilt of conspiracy, the prosecution must prove that the defendant and another person “had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act” by one or more of the parties in furtherance of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416.) However, to prove a conspiracy “it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.” (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)
C. Evidence Sufficient
As the jury was instructed, in order to prove that appellant was guilty of conspiracy to commit murder, the prosecution had to prove that appellant intended to agree and did agree with one or more of the other defendants, or Camarena, or other unnamed persons, to intentionally kill; that at the time of the agreement, appellant and one or more of the other members of the conspiracy intended that one or more of them would intentionally kill; and that appellant, or his codefendant, or Camarena, or other unnamed persons, or all of them, committed at least one of the alleged overt acts in California.
The overt acts listed for the jury were: (1) appellant and Carrillo obtained a stolen silver Toyota to use in a drive-by murder; (2) appellant and Carrillo obtained a Smith and Wesson.40-caliber pistol to use in a drive-by murder; (3) appellant and Carrillo obtained two pairs of gloves to wear while firing the.40-caliber pistol; (4) appellant and Carrillo got into the silver Toyota with the pistol and the gloves; (5) Carrillo drove the car while appellant sat in the front passenger seat; and (6) appellant and Carrillo began driving around Compton searching for an African-American male to kill as appellant’s initiation into the Compton Varrio 70’s criminal street gang.
No formal agreement was required, and the jury was told it could infer an agreement from conduct. (See People v. Provost, supra, 60 Cal.App.4th at p. 1399.) The jury was instructed that a person who merely accompanied or associated with a member of a conspiracy, but who did not intend to commit the crime, was not a member of the conspiracy. The jury was cautioned that evidence that a person did an act or made a statement that helped achieve the goal of the conspiracy was not enough on its own to show that the person was a member of the conspiracy. The jury was also instructed that “a failure to act is not sufficient alone to withdraw from conspiracy.”
We believe the evidence produced by the prosecution led to the reasonable inference that appellant participated in a conspiracy to commit murder and to commit assault with a semiautomatic firearm. During his interview with police on December 1, 2006, appellant said Camarena and he went to pick up some of Camarena’s friends, and they told him “hey, if we’re going to jump you into hood you’re going to have to kill somebody....” When they saw some Black men outside a barbershop, they told appellant he had to kill one of them. Camarena gave appellant a gun, and appellant walked to the barbershop but did not shoot anyone, telling Camarena that the men had entered the barbershop before he could shoot. Camarena told appellant that they would come back at night. Later, Camarena and the others dropped off appellant at Camarena’s, where appellant was staying, at approximately 11:00 a.m.
Appellant having just been through an experience that he claimed had made him afraid, went out with his girlfriend and returned to Camarena’s to watch a game on television. True to their word, the gang members came back for him after 8:00 that night. They took appellant to the silver Camry and they told him he would have to kill someone. Appellant donned the gloves he was given, and he took the gun from Camarena. He and his codefendant drove around for about half an hour “looking for black guys.”
The evidence thus showed that appellant was completely compliant with the activities of Camarena and his fellow gang members, and it was reasonable for the jury to infer that he shared their intent to find some Black men and shoot them. Appellant told police that he did not leave Camarena’s home that day because Camarena and the others did not tell him they were going to come and get him. He also gave the excuse that he needed a place to stay. The jury reasonably rejected both of these excuses as insufficient to negate the clear evidence of intent. Although appellant claimed he was afraid there was no evidence appellant was threatened in any way—only that he was chided for living and eating for free at Camarena’s home. The evidence showed that during the secretly taped conversation with Camarena, Camarena asked appellant, “Why didn’t you just tell me you didn’t want to and that’s it, fool?” He told appellant that appellant should have just said he did not want to participate and not involve more people.
The circumstances thus clearly show that appellant, with full knowledge that Camarena was a Compton Varrio 70 gang member with a desire to kill Black gang members, or Black men in general, went along with Camarena and his companions on a mission to kill. Appellant told police that he lied in the morning barbershop encounter to avoid killing a Black man, but nevertheless, he did not try to avoid Camarena that evening. Moreover, appellant’s attempt to minimize his complicity was not always consistent. For example, he stated that he did not know he was in a stolen car until he and Carrillo were stopped and arrested. Toward the end of the interview, however, he said that he had told his girlfriend during the afternoon that the others had stolen a car. The testimony of Detective Hecht also supported the jury’s verdict. He explained that it was possible to refuse to join a gang and that gang members tested individuals who wished to join the gang by having them commit crimes, but only if those individuals were trusted. Based on the evidence presented, it was reasonable for the jury to infer that appellant intended to participate in the conspiracy and had agreed to his initiation task, since he was riding in a stolen car with a semiautomatic firearm by his side, in the company of the “follow vehicle” of gang members, and in search of Black men to kill.
Notably, the jury found the three most significant overt acts to be true, making no finding only on the overt acts involved with obtaining the car, the gun and the gloves. The jury found that appellant had entered the car with the gun and gloves, sat in the passenger seat while Carrillo drove, and had searched, with Carrillo, for an African-American male to kill as his initiation. Overt acts such as those found true against appellant may serve as circumstantial evidence of the conspiracy’s existence and establish the conspiracy’s purpose and intent. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) Viewed in accordance with the appropriate standard, under which we uphold the jury’s verdict if the circumstances reasonably justify its determination of guilt (People v. Stanley, supra, 10 Cal.4th 764 at pp. 792-793), the evidence here amply supports the convictions for conspiracy to commit murder and conspiracy to commit assault with a semiautomatic firearm.
II. Sufficiency of the Evidence in Support of the Gang Allegations
A. Appellant’s Argument
Appellant contends that, with respect to him, there was insufficient evidence that the instant offenses were committed with the required specific intent to “promote, further, or assist in any criminal conduct by gang members” apart from the current conviction. (See § 186.22, subd. (b)(1).) As a result, the enhancements imposed pursuant to the gang allegations in counts 1, 3, 4, and 5 violated appellant’s right to due process and must be reversed.
B. Relevant Authority
“In considering a challenge to the sufficiency of the evidence to support an enhancement, [the reviewing court] review[s] the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [It] presume[s] every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
C. Evidence Sufficient
Appellant concedes that his intent to assist his codefendant and other gang members could certainly be implied by his actions regarding counts 1, 3, 4, and 5 and other facts of the case. He argues, however, that there was insufficient evidence to show his intent to further criminal conduct by gang members apart from the current conviction, citing Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia). Garcia held that a true finding on a gang enhancement was unsupported because there was no evidence that the defendant committed the crime (robbery) “with the specific purpose of furthering other gang criminal activity” and there was “nothing inherent in the robbery that would indicate that it furthers some other crime.” (Id. at p. 1103.)
Appellant’s reliance on Garcia is misplaced. Our Supreme Court in Albillar, supra, 51 Cal.4th 47 recently rejected Garcia’s interpretation of the gang statute. Quoting People v. Romero (2006) 140 Cal.App.4th 15 from Division Four of this court, Albillar stated, “‘“By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members, ’ rather than other criminal conduct.”’” (Albillar, supra, at p. 66, quoting People v. Romero, supra, at p. 19.)
As for the evidence in general, People v. Villalobos (2006) 145 Cal.App.4th 310, 322, stated that, “[a]s to the second prong of the enhancement, all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” The evidence showed that appellant committed the offenses in counts 1, 3, 4, and 5 in concert with Camarena and his fellow gang members, and appellant was aware of their gang status. And, as appellant acknowledges, Detective Hecht gave expert testimony that the crimes charged in these counts would benefit the Compton Varrio 70 gang because gang members enhance their reputations by being violent. It is the reputation for violence of the gang members, and hence the gang, that intimidates the community and prevents them from coming forward and talking to the police when crimes are committed by gang members. Therefore, substantial evidence supports the true findings in the gang allegations.
III. Section 654 Issues
A. Appellant’s Argument
Appellant argues that his sentences in counts 4 and 5 (carrying a loaded firearm and conspiracy to commit assault with a semiautomatic firearm, respectively) and the gang allegation in count 1 are unlawful pursuant to section 654 and must be stayed. Appellant argues that he did not have a separate intent and objective in counts 1, 4, and 5. With respect to the gang allegation, appellant contends that the minimum parole eligibility date of 15 years must be stricken, since it does not add any time to appellant’s sentence for conspiracy to commit murder, which is 25 years to life.
Section 654 provides in pertinent 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.”
B. No Error
The record shows that the trial court initially sentenced appellant to concurrent terms in counts 4 and 5, but that it subsequently corrected itself, stating, “If I did not say that, I intended to and they are stayed pursuant to Penal Code section 654.” Therefore, there was no error or unlawful sentence.
The trial court was correct in imposing a 15-year minimum parole eligibility term attributable to the gang allegation in count 1. Section 186.22, subdivision (b)(5) provides that when, as here, a defendant commits a crime punishable by imprisonment for life, the defendant is subject to a minimum term of 15 years before being considered for parole. This 15-year minimum term is in lieu of the determinate gang enhancement. “The determinate term enhancement provided for in [section 186.22, ] subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for which a determinate term is [prescribed]; if the conviction is of a crime for which an indeterminate term of life in prison is [prescribed], the limitation upon parole eligibility provided for in [section 186.22, ] subdivision (b)(5) is applicable. If the parole limitation of [section 186.22, ] subdivision (b)(5) is applicable, the 10-year enhancement is not.” (People v. Fiu (2008) 165 Cal.App.4th 360, 390, citing People v. Lopez (2005) 34 Cal.4th 1002, 1007, fn. omitted.) Contrary to appellant’s interpretation, People v. Lopez does not stand for the proposition that the 15-year parole eligibility term must be stricken. As stated in Lopez, section 186.22, subdivision (b)(5) applies to defendants sentenced to terms of 25 years to life even when the 15-year minimum term has “no practical effect” on the minimum amount of time a defendant must serve. (People v. Lopez, supra, at pp. 1008-1009.)
IV. Sentence on Count 5 Gang Allegation
Appellant contends that the 10-year section 186.22, subdivision (b)(1)(C) gang enhancement imposed in count 5 was unlawful because the substantive offense, conspiracy to commit a section 245, subdivision (b) assault with a firearm, is not a violent felony under section 667.5, subdivision (c), but rather a serious felony under section 1192.7, subdivision (c)(31) and (c)(42). Therefore, appellant’s gang enhancement in count 5 should have been for five years only as prescribed by section 186.22, subdivision (b)(1)(B). Respondent concedes this issue.
Appellant is correct that conspiracy to commit an assault with a firearm is a serious felony under sections 186.22, subdivision (b)(1)(B) and 1192.7, subdivision (c)(28), (31), and (42). Because an unauthorized sentence can be corrected on appeal despite a lack of objection below, we will correct the length of the enhancement term, which was stayed pursuant to section 654.
V. Fees and Assessments
Respondent asserts that the trial court should have imposed a court security fee of $20 under section 1465.8 for each of appellant’s convictions. The record shows that the trial court imposed a fee of $30 only once.
In September 2008, at the time of appellant’s convictions, section 1465.8, subdivision (a)(1) provided in pertinent part that, “[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense....” (Stats. 2007, ch. 302, § 18.) Respondent is correct that the trial court should have imposed four court security fees of $20 each rather than one at $30, and the judgment must be modified to reflect the correct fees. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 [unauthorized sentence may be addressed for first time on appeal.)
Finally, respondent points out that the trial court imposed a $30 criminal conviction assessment pursuant to Government Code section 70373. Government Code section 70373 became effective on January 1, 2009, after appellant’s conviction in September 2008, and the assessment imposed pursuant to that statute must therefore be stricken. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1414 [assessment imposed on all convictions occurring after statute’s effective date].)
DISPOSITION
The judgment is modified to strike the 10-year gang enhancement imposed and stayed in count 5 pursuant to Penal Code section 186.22, subdivision (b)(1)(C) and to impose and stay a five-year gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1)(B) in its stead. The criminal conviction assessment imposed under Government Code section 70373 is stricken, as is the $30 court security fee imposed under Penal Code section 1465.8. Four $20 court security fees are imposed in accordance with the 2008 version of Penal Code section 1465.8. In all other respects, the judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.