Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 146780
GEMELLO, J.
Defendant Henry Fonseca was convicted of two counts of assault with a firearm, carjacking, robbery and two counts of attempted carjacking, and several enhancement allegations were found true. He was sentenced to 24 years eight months in prison. He raises multiple challenges. We affirm.
Background
Fonseca was tried by a jury for four crimes that took place between February and June 2003. Fonseca had confessed to all four crimes and admitted gang membership shortly after his arrest. At trial, he testified that his confessions were involuntary and false and he denied responsibility for the crimes. We set out the facts as to the prosecutor’s gang allegations and each of the four incidents.
The gang allegations were supported by the fact that in his June 18, 2003 confession, Fonseca said he had been an SSL member for three to four months. Some of the participants in the incidents were members of South Side Locos (SSL), a Surenos gang that uses the number 13 as a gang symbol. At trial, Laura Chavez and Jashua Mejia testified that they were SSL members at least as of April 8, 2003. Fonseca identified Cesar Palacios, Laura Chavez, and Jashua and Pablo Mejia as SSL members.
February 13 Drive-By Shooting on East 15th Street
On February 13, 2003, Juan Sanchez, Jesus Gonzales and Ernesto Avalos were gathered outside a house on East 15th Street in Oakland. A gang expert testified that Avalos was a member of Quince (15), a Norteno gang that was a bitter rival of SSL. Fonseca’s car passed by the house; someone inside the car shouted “13” in Spanish; and a passenger fired multiple gunshots at the three victims. None of the victims could identify the assailants.
In his confession, Fonseca said he drove his car to Quince turf knowing that Pablo Mejia, his passenger, planned to shoot at a Norteno. At trial, Fonseca testified that he was hanging out with friends during the incident and someone else used his car. Luis Jimenez corroborated Fonseca’s trial testimony.
Fonseca was charged with three counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1 to 3) with gang enhancement allegations (§ 186.22, subd. (b)(1)). He was acquitted all charges relating to this drive-by shooting.
All statutory references are to the Penal Code unless otherwise indicated.
April 8 Group Attack Outside Restaurant
On April 8, 2003, Gilbert Mendoza and Brandy Brady exited a chicken restaurant in Oakland and were surrounded by a group of Mexican men armed with baseball bats and golf clubs. One of the men, Jashua Mejia, accused Mendoza of breaking his brother’s arm. Brady stepped in front of Mendoza to shield him and one of the assailants hit her. She fell to the ground, and as Mendoza bent over to help her someone struck him on the back of the head. Mendoza grabbed Brady and dragged her into the busy street. Mendoza approached a minivan in traffic, opened the side door, placed Brady inside, and held on to the outside of the vehicle as it drove away.
During the incident, Mendoza heard three to six gunshots but did not see where they came from. Brady saw Chavez point a gun at her face from 25 feet away. As Chavez fired the gun, Brady raised her hands and was shot in the arm. Brady also saw Fonseca shoot a gun. Chavez testified that she fired a BB gun at Brady one time, but Fonseca shot an actual gun at the couple.
In his confession, Fonseca said that he arrived on the scene when Mendoza and Brady were running to the van. He fired a gun five times in their direction. At trial, he testified that he was in the vicinity of the restaurant with friends when he noticed his cousin and some other people gathered outside. He saw a man and a woman trying to get into a van and saw Chavez shoot at them three or four times with a gun, not a BB gun. Fonseca testified that he did not have a gun or use a gun during the incident.
Fonseca was charged with two counts of assault with a firearm (§ 245, subd. (a)(2); counts 4, 5). As to both counts, there was a personal use of a firearm allegation (§§ 12022.5, subd. (a); 1203.6, subd. (a)(1)) and a gang enhancement allegation (§ 186.22, subd. (b)(1)). As to count 4, it was alleged that Fonseca personally inflicted great bodily injury on Brady (§ 12022.7, subd. (a)). Fonseca was convicted of both counts. The jury found the gang enhancement allegation true, found the great bodily harm allegation not true, and could not reach agreement on the personal use allegation.
June 17 Carjacking and Robbery on Perkins Drive
On June 17, 2003, Timothy Oakes pulled into his driveway on Perkins Drive near midnight. A car pulled in behind him and two masked men got out of the car. One of them walked toward Oakes, pointed a gun at him, and demanded his wallet and keys, which Oakes tossed toward him. The gunman then hit Oakes in the forehead with the back side of the gun. The spring and base plate of a handgun were later found in Oakes’ driveway. The assailants took Oakes’ wallet and car. Shortly after the incident, Gerardo Mendoza was apprehended driving Oakes’ car with Oakes’ wallet in his possession. Oakes identified Mendoza as the assailant who did not have the gun. Fonseca was apprehended early in the morning of June 18 in the company of Luis Jimenez, who had a handgun that was missing some parts. Oakes could not positively identify Fonseca as the gunman.
In his confession, Fonseca admitted that he participated in the incident, that he had a loaded gun with him, and that he hit the victim with the gun. At trial, he admitted participating in the carjacking and hitting Oakes with his hand, but he denied having or using a gun. Gerardo Mendoza testified that he decided to carjack a car without discussing his plan with Fonseca. Mendoza approached Oakes while Fonseca stayed near the car. Mendoza testified that neither he nor Fonseca hit Oakes, and Fonseca was not carrying a gun.
Fonseca was charged with carjacking (§ 215, subd. (a); count 6) and second degree robbery (§ 211; count 7). As to both counts, it was alleged that he personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). Fonseca was convicted of both counts and the jury found the allegations true.
June 18 Attempted Carjacking on Marina Boulevard
On June 18, 2003 at about 1:15 a.m., driver Juan Daniel Lopez and passenger Maxil Munoz were on Marina Boulevard in San Leandro. A car pulled in front of Lopez’s car at an angle and stopped. A rear passenger stepped out of the car and pulled a gun out of his belt. Lopez sped in reverse and hit the curb. The other car turned around and sped toward him. The same man exited the car and pointed a gun at Lopez, but Lopez was able to drive away. Lopez did not see any of the car occupants except the gunman.
In his confession, Fonseca said he and the other participants attempted a carjacking to help Gerardo Mendoza get out of jail, presumably by raising bail money. He drove the car during the incident. At trial, Fonseca testified that he drove the car to Marina Boulevard but he did not know about the carjacking plan. He pulled in front of the other car at Jimenez’s request. When the other car backed away, he did not pursue it. Jimenez testified that Fonseca followed his directions, that Fonseca did not know about the plan to commit a carjacking, and that Fonseca protested when he realized a carjacking was taking place.
Fonseca was charged with two counts of attempted carjacking (§ 215, subd. (a); counts 8-9). He was convicted of both counts.
Pretrial and Trial Proceedings
Fonseca’s pretrial motion to suppress his confessions as involuntary was denied. Fonseca’s motion to sever the counts into two or three trials was also denied. A jury convicted Fonseca of counts 4 through 9 and various allegations were found true, as detailed above. The jury was then asked to decide whether aggravating sentencing factors were true as to each count. They returned several true findings. The court sentenced Fonseca to 24 years eight months in state prison.
Discussion
Fonseca raises five claims. First, he argues his confessions were involuntary. Second, he argues the trial court erred by denying his motion for severance. Third, he argues the People failed to produce independent evidence of the corpus delicti of the shooting outside the restaurant, which was necessary to corroborate his confession to that crime. Fourth, he argues there was insufficient evidence to support the gang enhancement allegations. Fifth, he argues the court erred by imposing upper terms and consecutive sentences based on facts that were elements of the crimes.
I. Involuntary Confession
Fonseca argues his due process rights were violated because law enforcement officers used interrogation methods that brought about involuntary confessions. Fonseca cites evidence from both the evidentiary hearing on the motion and the trial in support of his argument. We consider Fonseca’s appellate claim as a challenge both to the trial court’s denial the motion to suppress and to the sufficiency of the evidence in support of his convictions. (People v. Memro (1985) 38 Cal.3d 658, 682.)
A. Background to Confessions
Fonseca and Jimenez were detained at 3:55 a.m. on June 18, 2003, and they were still under detention as of 4:53 a.m. Sometime thereafter, Fonseca was transported to a sheriff’s substation where Oakland Police Officers Scott Wong and Eugene Guerrero met with Fonseca in an interview room at 9:06 a.m. They learned that Fonseca was 17 years old. The officers knew Fonseca had not graduated from high school. Fonseca appeared to be in good health. He did not express an unwillingness to talk to the officers and he did not request an attorney. He did not indicate that he wanted to talk with his mother. He was interviewed in English and never indicated he could not understand due to language difficulties and/or that he wanted to talk to someone who spoke Spanish. Wong had no doubt that Fonseca was able to understand Guerrero. If he had had doubts, he would have provided a Spanish language interpreter for Fonseca.
The first part of the interrogation was not tape recorded. Using a standard written form, Guerrero read Fonseca his Miranda rights and asked whether he understood those rights. Fonseca agreed to talk to the officers and signed the waiver form. Guerrero then interrogated Fonseca about the East 15th Street drive-by shooting, the assault outside the restaurant, and a homicide that took place on East 15th Street. Fonseca initially said he knew nothing about the incidents. Guerrero revealed information he knew about Fonseca and played an excerpt from a taped interview with Laura Chavez. Fonseca then admitted his involvement in the drive-by shooting and the restaurant assault; he denied involvement in the homicide. At 9:25 a.m., the officers began a 20-minute tape recorded interview with Fonseca in which they covered the same subject matter.
Miranda v. Arizona (1966) 384 U.S. 436.
About 15 minutes after the taped police interview, Fonseca was interviewed by Deputy Sheriffs Kurt VonSavoye and David Dickson. The entire interview with the sheriff’s deputies was tape recorded. VonSavoye testified that he knew Fonseca was 17 years old. Dickson testified that Fonseca did not appear intoxicated or physically hurt. Further, Fonseca never indicated an unwillingness to talk to the deputies, he did not ask to talk to his mother or a lawyer, and he did not indicate he was having any difficulty understanding them. The interview was conducted in English and he answered responsively in English. The deputies used Spanish language interpreters that morning when interviewing other suspects in the incidents.
Deputy VonSavoye advised Fonseca of his Miranda rights and Fonseca indicated he understood those rights and wanted to talk to the deputies. The deputies stressed to Fonseca that the charges he faced in Oakland (the drive-by shooting and the restaurant assault) were much more serious than the county carjacking charges they were investigating and they urged him to resolve the county matter quickly. Fonseca admitted involvement in the Perkins Drive and Marina Boulevard incidents, but he denied involvement in two other carjackings, even after he was told the victim in one of the incidents had identified him as the perpetrator.
Fonseca testified through a Spanish language interpreter that although he had not slept for a week before the interrogations because he had taken crystal methamphetamine and ecstasy and he had used drugs as recently as the evening before his arrest, he did not tell the officers about his drug use. He claimed that during the off-tape interview with the Oakland police officers, he asked Guerrero if he could talk to his mother and Guerrero said he could not call her until after the interview was completed. Fonseca also testified that he had trouble understanding Guerrero’s questions.
After hearing the testimony, the court listened to the taped interviews and reviewed the Miranda waiver forms Fonseca signed. The court found that Fonseca understood his constitutional rights and consented to talk to the officers. “There did not appear to be a language problem. There was no indication during the course of the tapes that the defendant lacked the sophistication to be able to respond to the situation with regards to deciding whether or not to talk to the officers or answer the questions.” Although Fonseca said he had not slept for a week, this did not seem to affect his ability to understand or respond to questions. Nor was there any indication he was under the influence of drugs. “There didn’t seem to be any significant delays in the questions and responses or incoherent responses.” The court denied the motion to suppress.
B. Voluntariness
Due process requires the exclusion of any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. (People v. Neal (2003) 31 Cal.4th 63, 79.) In assessing voluntariness, a court must consider the totality of the circumstances. No one fact is dispositive. A statement is involuntary when among other circumstances, it was extracted by any sort of threats . . ., [or] obtained by any direct or implied promises. (People v. Jablonski (2006) 37 Cal.4th 774, 813-814.) Courts consider both the characteristics of the accused and the details of the encounter. (Id. at p. 814.) Details of the encounter that courts have found relevant include an officer’s deliberate violation of the suspect’s rights and an officer’s use of promises and threats during the interrogation. (See, e.g., Neal, at pp. 80-82, 84-85.) Relevant characteristics of the accused include the suspect’s age, experience with the criminal justice system, level of education, intelligence, physical state when taken into custody, physical state resulting from the conditions of custody, and ability to understand the rights explained by the officer and the questions posed by the officer. (See, e.g., id. at p. 84; People v. Clark (1993) 5 Cal.4th 950, 988.)
In reviewing a trial court’s determination of voluntariness, we accept the trial court’s factual findings. In light of those factual findings and the entire record, we independently determine the legal question of whether the statements were voluntary. (People v. Jablonski, supra, 37 Cal.4th at p. 814.)
Fonseca argues that several factors cumulatively rendered his confessions involuntary. He claims that he repeatedly requested the presence of his mother while the Oakland police officers interviewed him off tape. Fonseca testified that Guerrero refused to let him call his mother until after the interview was over. Both Wong and Guerrero testified that Fonseca never asked to speak to his mother. The evidence on this factual issue was in conflict and we are bound by the trial court finding. The length of the interrogations—20 minutes off tape and 20 minutes on tape with the Oakland officers, immediately followed by a 30-minute recorded interview with the deputy sheriffs—does not suggest a coercive atmosphere. (Cf. People v. Neal, supra, 31 Cal.4th at p. 84 [interrogations spanned a 24-hour period while suspect was held in custody].) Similarly, the mere fact that Fonseca was interviewed off tape before his statements to the Oakland police were recorded is not evidence of coercion. Fonseca did not testify that the officers made threats or promises of leniency during the initial interview that rendered his subsequent statements involuntary. (Cf. id. at pp. 84-85 [citing evidence of a threat and a promise].)
In his reply brief, Fonseca contends the evidence on this issue was not in conflict because Fonseca testified he asked Guerrero if he could speak to his mother, and only Wong and VonSavoye testified he did not ask to speak to his mother. This is incorrect. As Fonseca acknowledges in his opening brief, Guerrero testified that Fonseca never asked to speak to his mother during their interviews.
Fonseca cites several personal characteristics suggesting he was particularly vulnerable to making an involuntary statement. He was 17 years old and the trial court later described him as “very, very young.” Fonseca had almost no prior experience with the criminal justice system; his primary language was Spanish and the interviews were conducted in English; and he was a low academic achiever. We are bound by the trial court findings there was no indication Fonseca lacked the “sophistication” to decide whether or not to talk to the officers. Fonseca’s young age, inexperience with the criminal justice system, and educational level did not render him unable to assert his rights and voluntarily decide whether to provide a statement to the police.
Fonseca testified that he had taken drugs within about 10 hours of the interview and had not slept for one week prior to the interviews due to his drug use. The Supreme Court has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised on voluntary ingestion of drugs where there is nothing in the record to indicate that the defendant did not understand the questions asked him. (People v. Clark, supra, 5 Cal.4th at p. 988.) The trial court made specific findings that Fonseca appeared to understand his constitutional rights and the questions posed to him and that there was no evidence of impairment by lack of sleep or intoxication. Additionally, we observe that Fonseca denied involvement in a homicide during the Oakland police interview and denied involvement in two carjackings during the deputy sheriffs’ interview, even though the deputies told him he had been identified as a perpetrator in one of the incidents. Clearly, his will was not entirely overborne by the circumstances of the interviews.
We affirm the trial court’s denial of the motion to suppress the statements as involuntary.
C. Sufficiency of the Evidence
When a conviction is challenged on the ground of insufficient evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Here, the specific issue is whether a reasonable trier of fact could find that Fonseca made his statements to law enforcement officers voluntarily.
The evidence presented at trial on the voluntariness of the statements was largely the same as the evidence presented on the motion to suppress. At trial, Fonseca additionally testified he was placed in an ice cold cell when he was first transported to the sheriff’s substation, where he may have remained for as many as four hours. Assuming the jury found his testimony credible, the evidence fails to establish coercive physical conditions such that a reasonable factfinder could only conclude the statements were involuntary. The jury had the opportunity to hear Fonseca’s statements and to assess his mental state.
An expert witness for the defense testified that it was well established that interrogations could produce false or partially false confessions. Two groups of people prone to giving false confessions are juveniles and people with subnormal intelligence or mental disabilities. But the expert had no knowledge of the circumstances of Fonseca’s interrogations. The expert’s testimony is not inconsistent with a conclusion that in the particular circumstances Fonseca’s statements were voluntary.
We conclude there was sufficient evidence for the jury to find that Fonseca’s confessions were voluntary.
II. Severance
Fonseca argues the court improperly denied his motion to sever the nine counts into three trials, one on the drive-by shooting, one on the restaurant assault, and one on the carjacking and attempted carjacking.
We review the denial of a motion to sever under an abuse of discretion standard, assessing the trial court’s exercise of discretion in light of the facts known at the time the motion is decided. (People v. Musselwhite (1998) 17 Cal.4th 1216, -1244.)
Section 954 establishes minimum statutory requirements for the joinder of criminal charges. (§ 954.) If those requirements are met, the court trying the case may nevertheless exercise its discretion to sever the counts “in the interests of justice and for good cause shown.” (Ibid.) Severance may be constitutionally required if joinder of the offenses would be so prejudicial as to deny a defendant a fair trial. (People v. Musselwhite, supra, 17 Cal.4th at pp. 1243-1244.)
“An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” (§ 954.)
Fonseca does not dispute that the minimum statutory requirements for joinder were satisfied in his case. As the trial court ruled, all of the charges against Fonseca were “offenses of the same class of crimes or offenses” because they all involved assaultive behavior against the person. (People v. Balderas (1985) 41 Cal.3d 144, 170.) Rather, Fonseca argues the trial court abused its discretion in denying his motion to sever.
To establish an abuse of discretion, Fonseca has the burden of clearly establishing there was a substantial danger of prejudice requiring severance. (People v. Bradford (1997) 15 Cal.4th 1229, 1315-1316.) “ ‘ “The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.” [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]’ [Citations.]” (Id. at p. 1315.) If evidence is cross-admissible, any inference of prejudice is dispelled. (Id. at pp. 1315-1316.) The party seeking severance has the burden of clearly establishing a substantial danger of prejudice. (Frank v. Superior Court (1989) 48 Cal.3d 632, 640.)
At the hearing on the motion to sever, the prosecutor argued the taped confessions were cross-admissible because the voluntariness and credibility of the confessions would be issues at trial and the jury had the right to hear the entirety of the taped statements to decide those issues. Fonseca did not respond to this argument. The court agreed with the prosecutor: “as [the prosecutor] is indicating, cross-admissibility in the contextual matter of the admissions is a factor.” The court concluded that none of the crimes was likely to inflame the jury against the defendant and joinder did not result in joining a weak case with a stronger case. “[W]e have one defendant in a relatively short period of time committing the same class of crimes . . . . This is what [section] 954 I think is directly trying to address, this very situation.”
The trial court did not abuse its discretion in denying the motion. Had there been separate trials, the voluntariness and credibility of Fonseca’s statements to the police would have been a major issue at each trial. (See People v. Balderas, supra, 41 Cal.3d at p. 174 [upholding denial of motion to sever where defense theory resulted in cross-admissibility of evidence].) Fonseca presented evidence about his personal characteristics, which was relevant to all of the statements he made to both the Oakland police and the deputy sheriffs. Similarly, Fonseca’s allegations of coercive tactics, such as the alleged denial of his request to speak to his mother before the taping of the Oakland police interview, was relevant to the voluntariness of all of his subsequent statements to the police and deputy sheriffs. The jury reasonably needed to review Fonseca’s entire recorded statements to assess his understanding of the questions posed to him in English, the coherence of his statements, his emotional or psychological state as indicated by the tone of his voice, and the extent to which he conceded some accusations made by his interrogators and insisted on his innocence of others.
Fonseca’s confessions included admissions about his gang membership at the time of the interviews. Fonseca argued that gang evidence was particularly inflammatory and was not relevant to all of the counts against him. His admission of gang membership, however, was relevant to all of the charges for which he was convicted. He admitted on June 18, 2003 that he had been a gang member for three or four months. The carjacking and attempted carjacking took place in the previous 12 hours, and the restaurant incident took place April 8, 2003, fewer than three months before the interrogations. Fonseca’s gang membership was relevant to the restaurant assault charges because it tended to prove that Fonseca committed the crimes with a specific intent to assist the gang; to the Perkins Drive carjacking charges because it tended to show that Gerardo Mendoza was lying to protect Fonseca; and to the Marina Boulevard attempted carjacking charges because it tended to show that Fonseca knew about the planned carjacking when he drove the car during the incident. Even assuming Fonseca’s admission of gang membership since about March was unduly prejudicial as to the February drive-by shooting charges, any error was harmless as to those counts because Fonseca was acquitted. The jury’s exposure to evidence about the February drive-by shooting was not unduly prejudicial as to the later three incidents because the jury heard substantial evidence directly relevant to those three incidents that established Fonseca’s gang participation and involvement in serious criminal activity.
Because of the cross-admissibility of the confessions, the court properly denied Fonseca’s severance motion.
III. Corpus Delicti of the Shooting Outside the Restaurant
Fonseca argues the People failed to produce independent evidence of the corpus delicti of the shooting outside the restaurant, which was necessary to corroborate his confession to that crime.
The corpus delicti of a crime consists of two elements: (1) the fact of the injury, loss or harm, and (2) the existence of criminal agency as its cause. (People v. Jones (1998) 17 Cal.4th 279, 301.) The corpus delicti must be established by the prosecution independently from the extrajudicial statements of the defendant. (Ibid.) The purpose of the rule is to assure that the accused is not admitting to a crime that never occurred. (Ibid.) The People need only make a prima facie showing permitting the reasonable inference that a crime was committed. (Ibid.) The inference need not be the only or even the most compelling one but need only be a reasonable one. (Id. at pp. 301-302.)
Fonseca misconstrues the corpus delicti rule when he argues there was no reliable evidence independent of his confession that anyone other than Laura Chavez fired a gun during the incident. The rule does not require independent proof that the defendant was the perpetrator of a charged crime; it only requires independent proof that the crime occurred. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1128-1129.)
Fonseca attempts to get around this problem by arguing there was no evidence of a shooting by a second person in addition to the shooting by Chavez. This is simply a creative repackaging of a claim that the prosecutor failed to present independent evidence that Fonseca as well as Chavez was a perpetrator of the shooting. Fonseca does not cite any legal authority in support of his corpus delicti analysis. In fact, the clear thrust of the case law is that the required corpus delicti showing is minimal and is strictly limited to the fact that a crime occurred. (People v. Jones, supra, 17 Cal.4th at p. 301.) It does not apply to evidence of the identify of the perpetrator or to other elements of an offense, such as the knowledge and intent requirements when a defendant is tried on an aiding and abetting theory. (People v. Gutierrez, supra, 28 Cal.4th at p. 1128.) Fonseca’s construction of the rule does not advance the limited purpose of the corpus delicti rule, which is to assure that a defendant is not convicted based only on his extrajudicial statements of a crime that did not occur. (Jones, at p. 301.) It is undisputed that there was sufficient evidence apart from Fonseca’s statements that a shooting occurred during the restaurant incident. The corpus delicti rule was satisfied.
Because Fonseca’s corpus delicti claim is fundamentally flawed, we need not address his ancillary arguments that Brady’s identification of him as a shooter was unreliable, that Chavez’s identification of him as the shooter was uncorroborated accomplice testimony (§ 1111), and that there consequently was insufficient evidence to support his convictions in the restaurant incident.
IV. Sufficiency of the Evidence of the Gang Enhancement Allegations
Fonseca argues there was insufficient evidence to support a true finding on the gang enhancement allegations as to the assault outside the restaurant. He contends that the attack was a personal vendetta to retaliate for Mendoza’s allegedly breaking Pablo Mejia’s arm in a fight. Fonseca contends that there was no evidence that Fonseca participated in the assault outside the restaurant with “the specific intent to facilitate other gang crimes” or that the crime was committed in furtherance of gang interests.
The gang enhancement statute requires proof that a felony was “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.” (§ 186.22, subd. (b)(1).) It is undisputed that SSL was a criminal street gang as defined in the statute.
Sufficient evidence was presented that Fonseca committed the restaurant assault “in association with” the SSL gang. The attack took place in the vicinity of a Mexican restaurant that was an SSL hangout. The attackers gathered outside the Mexican restaurant before initiating the attack. The stated purpose of the attack was to avenge an assault on Pablo Mejia, an SSL member. Two leading participants in the attack, Jashua Mejia and Laura Chavez, were SSL members. Fonseca wore his gang’s color blue during the attack. There is no evidence that the gang members were out on a frolic, rather than acting together as a gang. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) One of the very purposes of a gang is to provide a ready-made manpower pool to support other gang members in committing crimes. (See id. at p. 1197 [citing expert testimony].) The first part of the statute is satisfied.
Sufficient evidence also was presented that Fonseca acted with a specific intent to promote, further or assist in criminal conduct by SSL members. Specific intent to benefit the gang is not required. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) As already stated, Fonseca knowingly participated in a criminal assault by SSL members. The evidence supports a jury finding that he acted with the specific intent to assist the gang as required by the second part of the statute.
Even assuming the statute required a finding that Fonseca acted with a specific intent to benefit the gang, sufficient evidence to support such a finding was presented at trial. Fonseca argues the attack was not gang-related but was committed to carry out Pablo Mejia’s personal vendetta against Mendoza. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) The jury heard expert testimony that the attack promoted the gang’s interests: by retaliating against someone they believed had broken Pablo Mejia’s arm, the gang members furthered their ongoing struggle to gain respect and build a reputation in an area they claimed as their turf. (See People v. Morales, supra, 112 Cal.App.4th at p. 1197 [citing expert testimony that crimes benefit gang by creating notoriety].) Fonseca argues there was no evidence the SSL members shouted gang slogans, mentioned a rival gang or responded to a specific gang-related insult, as was the case in Olguin, at pp. 1382-1383, but such evidence is not mandatory. (See, e.g., Morales,at pp. 1179-1182, 1198.)
V. Use of Aggravating Factors at Sentencing
Fonseca argues the trial court erred when it selected erroneous and unsupported aggravating sentencing factors. He contends that the court used facts for the dual purposes of satisfying the elements of the underlying charges and sentencing enhancements and imposing aggravated and consecutive terms, and he argues certain factors are not supported by substantial evidence.
A. Fonseca’s Sentence
The trial court submitted the aggravating sentencing factors to the jury. As to each of Fonseca’s offenses, the jury found true aggravating factors enumerated in California Rules of Court, rule 4.421(a). The court cited those aggravating factors when it announced that it was imposing upper terms and consecutive sentences for those sentences.
In 2004, the United States Supreme Court had decided Blakely v. Washington (2004) 542 U.S. 296, which held that, with the exception of the fact of a prior conviction, any fact that increases the statutory maximum sentence for a crime must be admitted by the defendant or proved by a jury beyond a reasonable doubt. As of April 2005, when Fonseca was sentenced, the California Supreme Court had not yet decided whether the California determinate sentencing scheme violated the Sixth Amendment under Blakely. (See People v. Black (2005) 35 Cal.4th 1238, decided June 20, 2005.)
All further rules references are to the California Rules of Court.
The court used count 6 (the carjacking on Perkins Drive) to set the principal term. It imposed the upper term of nine years (§ 215, subd. (b)) and added a mandatory 10-year consecutive sentence for the personal use of a firearm enhancement (§ 12022.53, subd. (b)), for a total of 19 years. For counts 4 and 5 (the assaults outside the restaurant), the court imposed consecutive subordinate terms of two years: one third the middle term for the offenses (one year; § 245, subd. (a)(2)) and one third the middle term for the gang enhancements (one year; § 186.22, subd. (b)(1)). For count 7 (the robbery of Oakes), the court imposed a subordinate term of four years three months: one third the middle term for the offense (one year) and one third of the mandatory 10-year term for the personal use enhancement (three years four months; § 12022.53, subd. (b)). The court stayed the sentence pursuant to section 654. For counts 8 and 9 (the attempted carjacking on Marina Boulevard), the court imposed consecutive subordinate terms of 10 months: one third the middle term (§ 215). The total sentence was 24 years eight months.
B. Forfeiture
The People argue Fonseca forfeited any claimed sentencing errors by failing to raise them at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353.) At sentencing, Fonseca did argue that the court should impose mid terms concurrently. He did not dispute the applicability of particular aggravating factors. He had already made those arguments to the jury at the bifurcated trial. Specifically, he argued to the jury that the vulnerable victim, leadership role, planning and sophistication, and great violence factors were inapplicable. In the circumstances, we conclude Fonseca’s sentencing claims are not forfeited. (See also Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 [appellate court has discretion to entertain argument first raised on appeal].)
C. Use of Aggravating Factors
The trial court has broad discretion to tailor a sentence to the particular case, discretion that includes deciding whether to impose upper terms and consecutive sentences. (People v. Scott, supra, 9 Cal.4th at p. 349.) The court must state reasons for its discretionary sentencing choices and courts typically cite sentencing factors set forth in the statutes and court rules. (Id. at pp. 349-350.) A single factor may be relevant to more than one sentencing choice, but dual use of factors is prohibited to some extent. (Id. at p. 350.) The court cannot use a single fact both to impose an upper term and to impose an enhancement, nor may it use a fact that constitutes an element of the offense to impose an upper term or impose an enhancement. (Ibid.; § 1170, subd. (b); rule 4.420(c), (d).) “On appellate review, a trial court’s reasons for its sentencing choice are upheld if ‘supported by available, appropriate, relevant evidence.’ [Citation.]” (People v. Black (2007) 41 Cal.4th 799, 818, fn. 7.)
1. Upper Term for Count 6
In imposing upper terms for the carjacking (count 6), the court cited the following aggravating factors set forth in rule 4.421:
(a)(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(a)(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(a)(3) The victim was particularly vulnerable;
(a)(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism; and
(b)(1) The defendant has engaged in violent conduct which indicates a serious danger to society.
The court found that these aggravating factors outweighed the mitigating factors of Fonseca’s insignificant criminal record and his young age. (Rules 4.423(b)(1), 4.408(a).)
The People concede it was error to rely on the weapons use factor because it was based on the same fact as the enhancement. (§ 1170, subd. (b); rule 4.420(c).)
The court’s reliance on the victim vulnerability factor is supported by substantial evidence. Gerardo Mendoza and Fonseca followed the victim, Timothy Oakes, to his home and confronted him once he was isolated on his driveway in a residential area close to midnight. The isolation of a victim has been recognized as a fact supporting a finding of victim vulnerability. (See People v. Ramos (1980) 106 Cal.App.3d 591, 607, disapproved on other grounds by People v. Scott, supra, 9 Cal.4th at p. 353.)
The violence and cruelty factor is supported by substantial evidence. Even though Oakes complied with Gerardo Mendoza’s demands to turn over his wallet and the keys to his car and even though Oakes gave no indication he was armed or planned to resist the carjacking, Fonseca hit him on the head with his gun. The court, which cited the blow to the head in finding the factor applicable, reasonably could construe this conduct as gratuitous violence or cruelty. The fact that Oakes did not suffer serious injury from the blow does not diminish the violence or cruelty of the act.
The planning and sophistication factor is supported by substantial evidence. The carjacking was not an impulse crime. Fonseca and Gerardo Mendoza drove around until they spotted a potential victim and then followed him to an isolated location, where they were more likely to successfully take the car. Mendoza drove off in the stolen car and Fonseca followed him in another car. When Mendoza was pursued by the police, Fonseca was in a position to impede the pursuit by blocking the police car’s path with his own car. These facts demonstrate that Mendoza and Fonseca followed a plan and worked in coordination to carry out that plan.
Finally, the factor that defendant was a serious danger to society is supported by substantial evidence. The court said Fonseca “was terrorizing the community by shooting and robbing victims at random.” This factor is supported by the fact of Fonseca’s rapid descent into violent crime, which coincided with his gang membership.
In sum, only one of the five aggravating circumstances cited by the court, Fonseca’s use of a weapon, was barred by the dual use prohibition. Four other aggravating factors were valid. Although the court also cited two mitigating factors, we conclude it is not reasonably probable that the court would have imposed the middle or lower term if it had known it could not rely on the weapons use factor. (See People v. Coleman (1989) 48 Cal.3d 112, 166 [improper dual use of facts]; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Kellett (1982)134 Cal.App.3d 949, 963.) We affirm the upper term sentence on count 6.
2. Consecutive Sentencing
“In deciding whether to impose consecutive terms, the court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. (See § 669; Cal. Rules of Court, rule 4.425(a), (b).) Factual findings are not required. . . . [T]he reasons given for imposing a consecutive sentence need only refer to the ‘primary factor or factors’ that support the decision to impose such a sentence. (Cal. Rules of Court, rule 4.406(a), (b); § 1170, subd. (c); see [citation].)” (People v. Black, supra, 41 Cal.4th at p. 822.)
Here, the court held that the three factors listed in rule 4.425(a) justified consecutive terms on all counts other than count 6. Fonseca does not challenge the court’s reliance on these criteria. These criteria alone support the court’s decision to impose consecutive sentences.
In any event, the aggravating factors cited by the court to support its consecutive sentencing decisions are also supported by substantial evidence. As to the restaurant assault counts (counts 4 and 5), the great violence and cruelty and vulnerable victim factors are easily established by the facts of the crime. Fonseca participated in a group armed attack on two victims, which drove the victims into a busy street, and Fonseca repeatedly fired a gun at the victims, risking the lives of many bystanders in the process. (Rule 4.421(a)(1), (3).) As to the attempted carjacking on Marina Boulevard (counts 8 and 9), the incident demonstrated planning and sophistication because four people worked in concert to commit the crime and Fonseca used his car to block the victims’ escape. (Rule 4.421(a)(8).) The great violence, cruelty or callousness factor applies because the perpetrators repeatedly pulled a gun on the victims, blocked their car in a traffic lane and then pursued and blocked them again after they backed away, and carried out the crime simply to raise bail money. (Rule 4.421(a)(1).) The vulnerable victim factor applies because the victims were outnumbered, unarmed and caught unawares. (Rule 4.421(a)(3).) The serious danger to society factor applies to all of the counts for the reasons stated above with respect to the Perkins Drive carjacking. (Rule 4.421(b)(1).)
We affirm the trial court’s decision to impose consecutive terms.
Disposition
The convictions are affirmed.
We concur: SIMONS, Acting P.J., NEEDHAM, J.